Supreme Court Won't Hear Case on Crisis Pregnancy Centers

The Supreme Court this morning declined to consider the appeals of anti-abortion "crisis pregnancy centers" that challenged on free speech grounds a New York City law requiring them to disclose pertinent information to women.

Conservatives have a number of weapons in their arsenal designed to limit or eliminate women's ability to make their own reproductive choices. In a 2013 report entitled Chipping Away at Choice: Five Growing Threats to Women's Healthcare Access and Autonomy, our affiliate PFAW discussed a number of tactics used by the far right, including the role played by crisis pregnancy centers:

Crisis pregnancy centers (CPCs) are so-called "abortion alternative" sites run by private organizations that claim to provide support, information and medical care to pregnant women. CPCs use misleading tactics to draw women in: The centers advertise themselves as legitimate health centers, purposely distorting the truth to take advantage of vulnerable women. In reality, CPCs do not present women with a full range of reproductive health options; instead, they use false information about abortion to pressure women into continuing unwanted pregnancies.

In 2011, New York City passed a law to protect women from various methods of deception that lawmakers had seen occurring in the city, such as making women think that these centers were staffed by licensed medical professionals and provided access to or accurate information about all available options. Such practices include having women fill in medical history forms as they would at a medical office, or having staff wear medical scrubs. The City determined that such deceptive practices can have serious health and financial consequences for women. So the law requires pregnancy service centers to disclose if their services aren't provided or supervised by licensed medical professionals. This information must appear on their ads and within the facility itself. They must also make the same disclosure when asked to provide emergency contraception, abortion services, or prenatal care.

This disclosure law doesn't restrict the services the centers can offer, nor does it keep them from continuing to say the things they had been saying about contraception and abortion. They just have to disclose that their advice on critically important women's health issues is not coming from licensed medical professionals.

Several pregnancy centers sued, claiming this disclosure requirement compelled them to add unwanted messages to their speech and therefore violated their First Amendment rights. They also claimed that the law's definition of which types of facilities it covered was unconstitutional because it was too vague. A divided three-judge panel of the Second Circuit Court of Appeals disagreed and upheld this part of New York's law. (The panel unanimously struck down other two other provisions of the law on First Amendment grounds. These were not part of the appeal to the Supreme Court.)

The Supreme Court only accepts a few dozen cases a year. What happened here is typical: The final decision was made by a lower federal court, not the Supreme Court. That's why, just as with the Supreme Court, it matters a great deal who is nominated and confirmed to all of our nation's federal courts.

PFAW Foundation

Supreme Court Won't Hear Abortion Rights Challenge

Good news from the Supreme Court this morning: the Justices have dismissed an Oklahoma abortion rights case (Cline v. Oklahoma Coalition for Reproductive Justice) as "improvidently granted." The Oklahoma Supreme Court had struck down as unconstitutional a state law designed to limit women's access to medication abortions by limiting how doctors prescribe medications designed to terminate early pregnancies.

The state law, which was pushed by anti-choice groups, required misoprostol and methotrexate, medications used to terminate early pregnancies, to be prescribed only as directed by the FDA; any variation from that (called "off label" use) is made illegal. But in the years since these drugs were approved by the FDA, doctors through experience have determined that such "off label" uses are more effective, safe, and convenient for women. Such "off label" uses also allow for abortion later in a pregnancy than FDA-approved use does, and doctors routinely prescribe drugs in an "off label" manner as they learn what works best for their patients. The Oklahoma Supreme Court struck down the law, but the U.S. Supreme Court asked it to clarify the extent of the law being challenged. The state court answered last week, leading to today's decision to not review the case.

So at least for now – and probably only for now – the Roberts Court has turned aside a chance to continue its work undermining the precedents protecting women's reproductive rights. But Oklahoma is not the only state adopting this method of restricting access to abortion. For instance, a similar provision is part of the new abortion restrictions in Texas currently being litigated in Fifth Circuit. So look for the issue to appear again before the Supreme Court, perhaps in a way that the far-right anti-choice majority regards as a better case strategically to make their next assault on reproductive freedom.

PFAW Foundation

Dahlia Lithwick and Jamie Raskin Discuss New Supreme Court Term

Earlier today, PFAW hosted a telebriefing for our members on the upcoming Supreme Court term, featuring two of the nation's most respected progressive experts on the Court: Dahlia Lithwick, a senior editor at Slate magazine, writes "Supreme Court Dispatches" and covers other legal issues for the magazine. Jamie Raskin is a professor of constitutional law at American University Washington College of Law, founder of its acclaimed Marshall-Brennan Constitutional Literacy Project, a Maryland state senator, and a senior fellow at People For the American Way.

You can listen to a full recording of the call here:

Raskin and Lithwick discussed the ominous turn that our law seems poised to take over the next few months at the hands of the Roberts Court. They talked about the cases where the far right Justices appear ready to remove key campaign contribution limits (McCutcheon v. FEC), weaken women's ability to exercise their reproductive rights (Cline v. Oklahoma Coalition for Reproductive Justice and McCullen v. Coakley), undermine church-state separation (Town of Greece v. Galloway), make it far easier to engage in housing discrimination (Mount Holly v. Mt. Holly Gardens Citizens in Action), and decimate workers' ability to form unions (Unite Here Local 355 v. Mulhall). Raskin and Lithwick answered questions from PFAW members and noted a common theme of many of these cases: erasing the moderate-conservative legacy of Sandra Day O'Connor by overruling precedents she was involved with.

They also discussed a case that has not made it to the Court yet but likely will: the Hobby Lobby case challenging the contraception coverage provisions of the Affordable Care Act. A lower court struck them down, ruling that corporations have religious liberty rights under the First Amendment just like they have free speech rights under the First Amendment (see Citizens United).

For more information about the cases discussed by Lithwick and Raskin, check out our affiliate PFAW Foundation's report on the Key Cases In The Supreme Court's New Term.

PFAW

The Scandal Cuccinelli Can't Dodge: His Extremist Positions

Virginia Attorney General Ken Cuccinelli wants to be the state's next Governor. But he has been dogged by an ethics scandal involving gifts he received from the head of a company that has sued the state. So last week, Cuccinelli tried to put the issue to rest by saying he'd contribute $18,000-the value of his questionable gifts-to a medical charity, saying, "I'm trying to wipe the slate clean here so we can focus on what's gonna matter in people's lives in Virginia in the next four years."

Of course, Cuccinelli's contribution doesn't magically wipe away questions about his character. And there's plenty of other evidence for Virginians to consider about the character of his record, and what four years of Cuccinelli as governor could do for -- or rather to -- the state.

Cuccinelli says his campaign is focused on jobs and the economy, but his extreme record as a state legislator and attorney general makes it clear that he considers himself commander-in-chief of the Religious Right's culture warriors.

He has bullied members of the Board of Health into adopting his anti-choice extremism. He has smeared and tried to defund Planned Parenthood. He even slams comprehensive sex education programs. As the Washington Post noted this week, he "was instrumental in ensuring that new regulations will result in the closure of many of the state's abortion clinics."

As a state senator, Cuccinelli was one of a handful of sponsors of an unconstitutional "personhood" bill that would have criminalized many common forms of contraception. Cuccinelli hasn't disavowed his support for "personhood" bills or their goal of making abortion illegal. But as a candidate for governor, he is trying to distance himself from the effects such legislation would have on women and families in Virginia. He claims that such legislation, which would grant legal rights to an egg at the moment it is fertilized by a sperm, wouldn't interfere with access to birth control. He is not telling the truth.

Here's another reminder of what kind of governor Cuccinelli would be: one of his first steps as Attorney General was to tell Virginia's public colleges and universities that they had to abandon policies against anti-gay discrimination. He reversed a legal opinion by his predecessor in order to prevent same-sex couples from adopting children. He refused to support repeal of the state's unconstitutional anti-sodomy law. He argues that consensual sex between gay adults is a detriment to society and should be illegal. As a state senator, he even opposed legislation that permitted private companies to voluntarily extend health benefits to employees' domestic partners.

Cuccinelli is also a champion of the Tea Party's anti-government extremism. He calls President Obama a tyrant. He filed suit against the Affordable Care Act five minutes after it was signed into law, a self-aggrandizing publicity stunt. He has falsely told people that under the law the government could send people to jail for not buying insurance. He even slams safety net programs like Social Security, Medicare, and Medicaid for making people dependent on government. 

There is seemingly no right-wing fringe to which Cuccinelli will not pander. He has used the power of his office to harass scientists in a climate-change-denying witch-hunt. He has called for a constitutional convention to rescind 14th amendment birthright citizenship. He said he was considering not getting his infant son a social security number because it was being used to track people. He flirted with birtherism.

And this week, he celebrated Constitution Day by appearing with right-wing radio host Mark Levin. Levin is an anti-union, anti-environmental-regulation, anti-public-education activist who rails against "establishment" Republicans and calls President Obama a Muslim Brotherhood sympathizer. In 2007, Levin's Landmark Legal Foundation nominated Rush Limbaugh for the Nobel Peace Prize.

Cuccinelli is an example of the strong political coalition that has been made between right-wing Catholics like himself and conservative evangelicals, including Virginia-based powerhouses like Falwell-founded Liberty University and Pat Robertson's broadcasting empire. Cuccinelli has criticized people, like President Obama, who support marriage equality for thinking they "know better than God." And he says homosexual behavior is "intrinsically wrong" and destroys people's souls and shouldn't be allowed in a "natural law based country."

Cuccinelli has clearly aligned himself with the far right within the Catholic Church and, like Paul Ryan, opposes the Church's advocacy on behalf of anti-poverty programs. He hasslammed the Catholic bishops for advocating for government assistance for the poor, saying that has "created a culture of dependency on government, not God." He complained that the archdiocese of Arlington, Virginia included issues like poverty, hunger, and health care on a voting guide without making clear that they, in Cuccinelli's opinion, are clearly less important than abortion.

Cuccinelli has convinced the Religious Right that he's their guy. That's why Rick Santorum has endorsed him and the Family Research Council's PAC is helping him raise money. 

But if Ken Cuccinelli wants to convince Virginia voters that he's not going to govern as a right-wing culture warrior, he'll have to do more than trying to "wipe the slate clean" on his ethical standards. He'll have to erase from the public record his own extreme record. And that will be a lot harder than writing a check.

(also posted at Huffington Post)

PFAW

Romney Campaign Plays Dumb About Roe v. Wade

What do you do to win over abortion rights supporters if you've spent your whole presidential campaign telling right-wing activists you're anti-choice? For Mitt Romney, the answer is simple: lie!

First there was the TV ad assuring women that under a Romney administration, they would have nothing to worry about. Then Romney told the Des Moines Register that no anti-choice legislation "would become part of my agenda." Then the right-wing Concerned Women for America -- one of the staunchest opponents of abortion rights out there -- backed him up with an ad saying that Romney could do nothing to overturn Roe v. Wade.

The main problem being, of course, that Romney's official position, which is on his website and which he has stated on video, is that he intends to appoint Supreme Court justices who will overturn Roe v. Wade, in effect criminalizing abortion in as much as half the country. The next president will likely get the opportunity to nominate at least one Supreme Court justice. If that president is Romney, the movement to overturn Roe will likely gain a majority on the Court.

But apparently the Romney camp thinks that just lying about Roe v. Wade is still the right way to go. Former Sen. Norm Coleman, who is campaigning for Romney in Ohio, told a group of voters yesterday that Romney would have no power to eliminate abortion rights through the Supreme Court:

“President Bush was president eight years, Roe v. Wade wasn’t reversed. He had two Supreme Court picks, Roe v. Wade wasn’t reversed,” former Sen. Norm Coleman (R-MN) told a Republican Jewish Coalition meeting in Beechwood, Ohio. “It’s not going to be reversed.”

If Coleman were to do some simple counting, he would realize that Bush did not have the opportunity to put an anti-Roe majority on the Court. His appointments of Samuel Alito and John Roberts only got the Right very, very close to that long-held goal. Mitt Romney would unquestionably and deliberately put them over the edge.

But of course, Coleman knows that. And so does Romney. They're just hoping that they can tell anti-choice activists one thing and abortion rights supporters another, and somehow get away with it.

PFAW

VP Debate Highlights the Importance of the Supreme Court

During his debate with Paul Ryan, Vice President Biden reminded Americans of one of the most important issues of the presidential election: The Supreme Court. When asked about abortion rights, Biden said:

The court -- the next president will get one or two Supreme Court nominees. That's how close Roe v. Wade is. Just ask yourself, with Robert Bork being the chief adviser on the court for -- for Mr. Romney, who do you think he's likely to appoint? Do you think he's likely to appoint someone like Scalia or someone else on the court far right that would outlaw (inaudible) -- outlaw abortion? I suspect that would happen.

Mitt Romney's choice of Robert Bork speaks volumes about what a Romney Court would do to America, not just for four years but for decades to come, since Justices have lifetime tenures. Bork's extremism caused a bipartisan Senate to reject his nomination to the Supreme Court in 1987, and for good reason.

As People For the American Way reported earlier this year in our Borking America report, he called legal desegregation of motels and lunch counters "unsurpassed ugliness." As a circuit court judge, Bork routinely ruled in favor of corporate power over ordinary Americans. He has said the Constitution allows states to criminalize the use of birth control and abortion, that the Equal Protection Clause doesn't apply to women, and ruled as a judge that a company could order its female employees to be sterilized or be fired.

This is the man that Mitt Romney would have picking our next Supreme Court Justices.

Vice President Biden has spoken before about the danger of the Romney Court, and it is not a pretty picture.

Check out our Romney Court site to get a full idea of the damage that his right-wing justices would do to Americans across the country.

PFAW

Bush Circuit Judges Uphold Ohio Abortion Restriction

This week has seen a yet another powerful example of the importance of the courts as an issue in the presidential election. Although George W. Bush has been out of office for nearly four years, his anti-choice ideology has been imposed on the women of Ohio due to the federal judges he nominated while president.

A split panel of the Sixth Circuit Court of appeals has denied Planned Parenthood's challenge to an Ohio law that tightly regulates and restricts mifepristone, which allows women to end their pregnancy without surgery. Judges John Rogers and David McKeague, both Bush nominees, ruled that the law does not unconstitutionally burden a woman's right to abortion. Judge Karen Nelson Moore, who was nominated by President Clinton, dissented.

Among the limitations under Ohio's law, doctors are subject to criminal penalties if they prescribe mifepristone more than 49 days after the woman's last menstrual period. As a result, women seeking an abortion beyond that point in their pregnancy would have to undergo surgery. The majority noted that several women had submitted affidavits saying they'd obtained surgical abortions after being denied the medical abortions they had preferred. Therefore, the judges concluded, Ohio's restriction does not constitute an “undue burden” on women:

[T]he Supreme Court has not articulated any rule that would suggest that the right to choose abortion encompasses the right to choose a particular abortion method.

As Judge Moore wrote in dissent:

Just by examining the physical differences between the methods, our common sense tells us that the differences between the procedures from the perspective of the woman are substantial. Surgical abortions, as the name suggests, require surgery, a physically invasive procedure, including sedation and potentially even general anesthesia, and a procedure in the sterile environment of an outpatient clinic. Medical abortions, on the other hand, consist primarily of ingesting pills and terminating the pregnancy in the privacy of the woman's home. Three years ago, almost a third of women chose this second method. We simply should not conclude as a matter of law that every woman who would prefer a medical abortion would be equally likely to obtain a surgical abortion on the basis of nine affidavits.

Presidents serve for four or eight years, but the judges they nominate serve for life. That's something to keep in mind on Election Day.

PFAW

Scalia Interview Reminds Us of the Stakes This November

Justice Antonin Scalia gave a TV interview last night on CNN in which he reminded Americans of his right-wing ideology. Since Mitt Romney has said he would nominate Supreme Court Justices like Scalia if elected president, the interview also served as a warning to Americans of what's at stake this November. Talking Points Memo summarizes some of the interview's highlights:

Scalia defended Citizens United, which took elections from the people and handed them to often-secretive powerful interests that drown out the voices of non-millionaires. He added, however, that people are "entitled" to know who is financing the messages they are bombarded with.

In an era when Roe v. Wade has already been watered down, Scalia repeated his belief that women have no constitutional right to abortion at all. "[M]y only point is the Constitution does not say anything about it. It leaves it up to democratic choice." (That would be news to those who adopted the Ninth Amendment specifically to counter future assertions that the rights specifically mentioned in the Constitution are a ceiling, not a floor.)

Scalia also stated his opinion that torturing an innocent person taken from a battlefield isn't cruel and unusual punishment prohibited by the Eighth Amendment. "I don't think the Constitution addressed torture, it addressed … punishment for crimes."

CNN adds another highlight:

When asked if he had ever broken the law, the justice said, "I've had a few speeding tickets, though none recently."

Let's hope for his sake that the traffic stop didn't lead to an unwarranted and humiliating strip search, as occurred to Albert Florence. When Florence challenged the strip search as unconstitutional, Scalia was part of the conservative 5-4 majority that denied his claim.

Do we really want a president who looks to Antonin Scalia as a model to emulate?

PFAW

Don’t Forget Who John Roberts Is

Add this to the good news/bad news mix from the Supreme Court's healthcare decision: Because of the good news (Chief Justice Roberts voted to uphold the constitutionality of the Affordable Care Act), we get the bad news that his standing among the nation's Democrats has significantly increased. This collective amnesia about who John Roberts is and what he has done is disturbing, especially since the direction of the Court is one of the most important issues upon which Democrats should be voting in November.

A new Gallup Poll shows wild fluctuations in Democrats and Republicans' assessment of Chief Justice John Roberts since their last poll in 2005, a change Gallup attributes to his role in upholding the Affordable Care Act. Roberts' approval rating among Republicans has plummeted 40 percentage points from 2005, falling from 67% to 27%. In contrast, his favorability among Democrats has risen from 35% to 54%. That the healthcare decision is a catalyst of this change is supported by a PEW Research Center poll last week showing that between April and July, approval of the Supreme Court dropped 18 points among Republicans and rose 12% among Democrats.

Yes, John Roberts upheld the ACA, but only as a tax. At the same time, he agreed with his four far right compatriots that it fell outside the authority granted Congress by the Commerce Clause, leaving many observers concerned that he has set traps designed to let the Court later strike down congressional legislation that should in no way be considered constitutionally suspect. He also joined the majority that restricted Congress's constitutional authority under the Spending Clause to define the contours of state programs financed with federal funds.

Just as importantly, Roberts's upholding the ACA does not erase the past seven years, during which he has repeatedly been part of thin conservative majority decisions bending the law beyond recognition in order to achieve a right wing political result. John Roberts cast the deciding vote in a number of disastrous decisions, including those that:

Oh, and then there's that little 5-4 Citizens United opinion that has upended our nation's electoral system and put our government up to sale to the highest bidder.

With a rap sheet like that – and this is hardly a complete a list – no one should be under the illusion that John Roberts is anything but a right-wing ideologue using the Supreme Court to cement his favorite right-wing policies into law.

Next term, Roberts is expected to lead the judicial front of the Republican Party's war against affirmative action and the Voting Rights Act. Whether he succeeds may depend on whether it is Mitt Romney or Barack Obama who fills the next vacancy on the Supreme Court.

PFAW

Is McDonnell Backing Off Invasive Ultrasound Bill?

Last week, we wondered if Virginia Gov. Bob McDonnell, a possible GOP vice presidential contender, would reconsider his position on a shocking anti-choice bill passed by the state’s legislature after it provoked a national outcry. The bill would require women seeking abortions to first undergo a medically unnecessary, highly invasive trans-vaginal ultrasound without their consent – a process which, under any other circumstances, would be considered rape under state law.

Gov. McDonnell had spoken in support of the bill before it was passed, but once the outcry against it began, fell oddly silent. Now, the Washington Post reports, he may be backing away from his support for the bill and looking for a compromise that will allow him to keep his anti-choice cred, while disassociating himself from one of the most egregious instances of the War on Women to come out of last week:

Gov. Robert F. McDonnell is backing off his unconditional support for a bill requiring women to have an ultrasound before an abortion, focusing new attention on one of the most controversial pieces of legislation in Virginia’s General Assembly this year.

Until this weekend, McDonnell (R) and his aides had said the governor would sign the measure if it made it to his desk. McDonnell, who strongly opposes abortion, will no longer make that commitment.

But delegates and governor’s staff were scheduled to meet Tuesday night to strike a compromise after learning that some ultrasounds could be more invasive than first thought, according to two officials who were aware of the meeting but not authorized to speak about it publicly. Many of the bill’s supporters were apparently unaware of how invasive the procedure could be, one of the officials added.

I doubt that McDonnell didn’t know the details of the bill before he spoke in favor of it. But after last week, he knows that signing it will hurt him among all but the most extreme anti-choice voters.
 

PFAW