Future of Abortion Access Remains Unclear After Supreme Court Oral Arguments

Originally published in The American Prospect on March 2nd, 2016.

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A deeply and now evenly divided Supreme Court heard oral arguments on Wednesday in the most consequential reproductive rights lawsuit to come before the high court in nearly 25 years.

The touchstone for the justices, who now number only eight since the death last month of Antonin Scalia, was the standard established by the high court in its 1992 ruling Planned Parenthood v. Casey, which found that abortion restrictions may not place an “undue burden” on women seeking to terminate a pregnancy.

At issue in the current case, known as Whole Woman’s Health v. Hellerstedt, is a package of abortion restrictions passed by the GOP-controlled Texas legislature in 2013. During oral arguments Wednesday, the eight justices seemed divided along predictable ideological lines. The Court’s four conservatives challenged whether the Texas restrictions impose an “undue burden” on women, and its four liberals questioned the medical necessity of the restrictions.

In Casey, the court ruled 5-4 that states may legally pass restrictions on abortion access so long as those restrictions do not create unreasonable obstacles for women who seek to exercise their constitutional right to safely terminate a pregnancy. InHellerstedt, reproductive rights supporters have set out to prove that Texas’s new restrictions indeed violate the standard established under Casey.

The Texas law, known as HB2, requires that all abortion providers in the state obtain admitting privileges at a local hospital, and that clinics meet ambulatory surgical center (ASC) building standards. A key argument from the plaintiffs challenging HB2 is that these requirements have led to the closure of roughly half the state’s abortion clinics.

Chief Justice John Roberts and Justices Samuel Alito and Anthony Kennedy all questioned whether there was sufficient evidence to make that claim. Stephanie Toti, the attorney representing Texas abortion providers, noted that in the five years prior to HB2’s passage, the number of abortion clinics in Texas stayed relatively constant. Once HB2 became law, however, eight clinics closed in anticipation of the restrictions, and 11 closed the day they went into effect.Toti argued that the timing of the closures, as well as testimony from the plaintiffs, provided ample evidence to show that the clinics closed as a result of HB2’s mandates. But the conservative justices seemed unconvinced.

The four liberal justices all pressed Texas Solicitor General Scott Keller on why the admitting privileges and the ASC requirements were medically justified. They pointed out repeatedly that Texas has not required other providers of such outpatient procedures as colonoscopies and liposuction to meet ASC standards, despite the fact that those procedures carry far greater medical risk. (The American College of Obstetricians and Gynecologists and the American Medical Association have also said there is “simply no medical basis to impose a local admitting privilege on abortion providers.”) Moreover, Justice Stephen Breyer noted that even if the Texas legislature thought it was improving women’s health care by putting these standards in place, there’s evidence that women now face more barriers to abortion access, which increases the likelihood for riskier late-stage or self-induced abortions.

Another disagreement centered on whether the few abortion clinics left in Texas are capable of providing service to everyone who needs reproductive care in the state. More than 70,000 women in Texas seek abortions each year, but Alito argued that it’s impossible to know for certain whether there are too few clinics because “we really don’t know” what the capacity is of the existing providers. Donald B. Verrilli Jr., the U.S. solicitor general, disagreed, arguing that it’s “common sense” that just eight, nine, or ten clinics in all of Texas would not be enough to meet the demand.

The case’s outcome rests largely with Kennedy, the justice who originally helped craft the vague “undue burden” standard in 1992’s Casey decision. If Kennedy sides with the state of Texas, that will presumably leave the high court deadlocked 4-4. That would leave in place the Fifth Circuit Court’s decision to uphold HB2. But it would also mean that the Hellerstedt ruling sets no new national precedent. Kennedy also signaled the possibility of sending the case back to the lower court for remand—or further fact-finding—to better determine whether the number of clinics left in Texas can meet the state’s demand for abortion. It’s possible that another version of Hellerstedt will return to the Supreme Court when a successor to Scalia is appointed. The Hellerstedt ruling is expected this summer.

Hundreds of reproductive rights supporters, dressed in purple, and anti-abortion activists, wearing blue, rallied energetically outside the Supreme Court this morning in the cold; holding up signs, chanting songs, and making speeches—at times drowning one another out. Some supporters camped outside the high court Tuesday night, while others arrived early in the morning by bus, from states like North Carolina and Georgia, and cities like Philadelphia and Cleveland.

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The threat to Internet privacy

Originally published in the Baltimore Sun on January 31, 2013.

This week, the United States, Canada, and the 27 countries in the European Union “celebrated” Internet Privacy Day. However, it seems there is little to really celebrate; the past few years have given rise to the largest increase in electronic wiretapping our nation has seen. To be sure, access to information is important for fighting crime and terrorism. However, because the major laws that govern Internet privacy were written in 1986, they fail to protect the modern-day security needs of American citizens. And despite Barack Obama’s campaign promises in 2008 to repeal policies that violate civil liberties, his administration is now not only supporting them but also quickly expanding their presence within the digital world.

The 1986 Electronic Communications Privacy Act (EPCA) was enacted before social networking sites were invented, and before the everyday use of email, Internet and cellphones. Thus, there are many unsettling constitutional quandaries that Congress simply could not have anticipated 27 years ago. For example, the bill says that the Fourth Amendment, which guards against unreasonable searches and seizures, applies to digital files — but only if they are not given to a third party. Yet third-party entities such as Google, Facebook and Dropbox hold some of our most private communications on their servers. The structure of the law as it is written gives more privacy protection to a yellow memo pad on your nightstand than emails on your Yahoo account.

In September, 2012 the ACLU released a report that stated the number of authorizations the Justice Department received to use “pen register” and “trap and trace” techniques on individuals’ email and network data increased 361 percent between 2009 and 2011. A “pen register” intercepts outgoing data from a phone or email account, while “trap and trace” intercepts incoming data. The ACLU also reports that the Justice Department used these measures to spy on phones 23,535 times in 2009 and 37,616 times in 2011, an increase of 60 percent.

Additionally, Google just released a report stating its company saw requests for information from the federal government increase by 70 percent over the past three years. In more than two-thirds of those cases, Google complied and released some amount of personal data. Sixty-eight percent of the requests Google received were through subpoenas, which typically do not require a judge’s approval. According to Google’s public statements, “Government agencies make requests … seeking information about Google users’ accounts or products. In [our] report, we are generally revealing statistics about demands in criminal investigations.”

To be sure, not all information requests are controversial, since these numbers reflect not only requests for “content” emails but also for basic subscriber information, which is not protected under the Fourth Amendment to begin with. Yet, while big companies like Google, Yahoo and Microsoft demand warrants for content requests, it is likely that smaller companies with less money for legal battles do not.

Google is not the only company facing a surge of government information requests. Verizon told Congress in 2007 that it received at least 90,000 such requests each year. And Facebook told Newsweek in 2009 that orders were arriving at the company at a rate of 10 to 20 a day. The number of requests and subpoenas has surely increased since then, but ultimately there exists no clear public mechanism to monitor exactly what information the government requests and receives from Internet companies. This is problematic.

The Obama administration has been too quiet on matters regarding digital security, and in situations where officials have spoken out, they’ve advocated for a greater ability to collect information, rather than less. In December, the administration reauthorized an extension of the Foreign Intelligence Surveillance Act, which allows the government to monitor overseas phone calls and emails without obtaining a court order for each intercept. While the law excludes Americans, there remains a lot of troubling obscurity as to the nature and execution of these powers. Additionally, the FBI has said that revising surveillance laws to make it easier to wiretap people who communicate online rather than by telephone is a top and urgent priority.

The FBI contends it is not seeking new, invasive powers but rather looking to keep its existing powers relevant in the modern age. However, the Obama administration, Congress and even the FBI have to work vigorously to protect the civil liberties and privacy of American citizens. As Internet Freedom Day (Jan. 18) and now Internet Privacy Day (Jan. 28) come and go, it is imperative that we actively seek to establish a clear and constitutional legal framework for the digital era.

North Carolina’s Amendment One

Tomorrow, a shameful amendment will be voted on by the state of North Carolina–and will likely pass according to all the latest polls. This amendment effectively alters the state’s constitution and will not only make it illegal for same-sex couples to be recognized in the state of North Carolina, but due to the wording of the legislation, will also ban any other type of “domestic legal partnerships” such civil unions and domestic partnerships.

This is the official language on the ballot:
Constitutional amendment to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.”

I have friends at UNC who have been doing some amazing work to protest this amendment. But the fact is, that while universities like UNC and Duke tend to be socially liberal, the majority of the state is full of voters with religious and conservative beliefs that make them support laws like this.

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Josh Orol, a sophomore at UNC protesting the amendment on campus

Proponents of the amendment point to states like New York and Connecticut, where same-sex marriage is legal and argue that if those couples then moved to North Carolina expecting certain legal rights, complicated issues would arise. By banning same-sex couples, they no longer have to deal with such hypothetical issues. As Representative Paul Starn said, “They’re going to bring with them their same-sex marriages. They’re going to want to get divorced” and have custody issues decided, he said. “We’re not equipped to handle that.”

Supporters also say that because this issue is so sensitive, it should be decided by the voters themselves, not by a handful of legislators.

Tami Fitzgerald, executive director of N.C. Values Coalition, argues that a popular vote on the amendment is the “right thing to do” and it is more democratic when it allows everybody to vote. Fitzgerald adds, “The people of North Carolina want to determine for themselves how they want to define marriage. They don’t want activist judges doing it for them.”

In fact, this is entirely misguided and incorrect.  It is no wonder the NAACP is so involved in this issue and opposed to this amendment. You don’t leave minority rights up to majority vote. Schools were not de-segregated because of a popular vote. Constitutionally enshrined protections are supposed to be immune to this type of thing. These people will receive different benefits and privileges because others voted that to be OK. Think about the implications and the precedents this sets for our country.


Barack Obama and Bill Clinton have come out against the amendment.
Obama’s statement said, “While the president does not weigh in on every single ballot measure in every state, the record is clear that the President has long opposed divisive and discriminatory efforts to deny rights and benefits to same sex couples.”
Clinton argued, “The real effect of the law will be to hurt families and drive away jobs.”

People are insisting that this ban will hurt businesses. Many people will no longer be able to receive the work benefits from the state that they once were able to, so it might dissuade people from working there. They also believe it will hurt all sorts of families, including heterosexual couples, by threatening insurance and benefits for unmarried couples and their children.

A high number of voters are expected to vote tomorrow because this issue invokes faith and religion, two historically major motivations in voter turnout. There have been 30 marriage amendments already in place in the United States, and only one, in Arizona has been defeated. However, that was in 2006, and then in 2008 it was reworded and passed.

This is increasing evidence of a growing polarization and ideological divide in our country as more and more nationally report support for same-sex marriage. In 2001, Americans opposed same-sex marriage by a margin of 57 percent to 35 percent. Today, 47 percent are in favor and 43 percent opposed, according to a new Pew Research poll.

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Social media activism from a friend’s facebook at UNC

The best thing at this point we can hope for is for enough people to become educated on this issue, and then work together to strongly oppose it. We should not allow for such important issues like human rights and freedoms to be left up to a popular vote.

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photo credit: blog.pflag.org

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photo credit: pamshouseblend.firedoglake.com/