Legal Wrap: When Will the Obama Administration Stop Playing Politics With EC?


Legal Wrap is a round-up of key legal and reproductive justice news

Last week, a federal judge blasted the Obama administration’s decision to file a last-minute appeal of a ruling making emergency contraception widely available while also approving Plan B for over-the-counter sales to individuals age 15 and older with ID. RH Reality Check’s Sharona Coutts attended a hearing related to the appeal and reports here how Judge Korman, a Reagan appointee, sharply criticized the administration’s handling of the emergency contraception issue as blatantly political and compared the administration’s efforts to evade the ruling to voter suppression efforts. The hearing was in connection with a request by the Obama administration to hold off enforcing the ruling that gave the administration until May to lift age and point-of-sale restrictions on emergency contraception while an appeals court hears the case. On Friday, Judge Korman denied the administration’s request, a decision that was all but given after his comments at the hearing.

Attorneys for the state of Arkansas argued the state’s 12-week abortion ban is constitutional and therefore a lawsuit challenging the statute should be dismissed, because it was passed to protect women. While the court considered the state’s request, attorneys for an anti-abortion counseling group asked if they could join the lawsuit and help defend against it. The main reason the group offered for why it should be allowed to defend the law: Denying patients access to abortion care is good for their business. Thankfully the court was not persuaded that was a good enough reason and denied the request.

An anti-abortion protester has sued the town of Jackson, Wyoming, arguing his 2011 arrest in connection with an Operation Save America protest violated his civil rights. Mark Holick, a Kansas pastor, was arrested while preaching in the Jackson town square shortly after the town secured a state court order barring any anti-abortion protesters from appearing on the town square. Operation Save America had descended on Jackson after a doctor in the town acknowledged performing abortions, and town officials sought the court order in response. But last year a Wyoming Supreme Court ruled that the order barring the protesters violated the rights of the protesters who were not alerted in advance that the town had requested. As a result of that Wyoming Supreme Court ruling Holick is now suing the town and its police officers, arguing that his arrest was unlawful and therefore he’s entitled to money damages. Officials for the town have not yet responded to the lawsuit.

The Sixth Circuit Court of Appeals heard arguments in Eden Foods Inc. v. Sebelius, one of the now 30 cases filed by secular, for-profit companies trying to evade health-care reform and radically re-define religious freedom. The federal appeals court also granted a request by the Obama administration to dismiss its appeal of a preliminary injunction granted to bible publisher Tyndale House, meaning the business does not have to provide insurance coverage for contraception to its employees. All in all there are now 62 cases challenging the birth control benefit in federal court, and the administration is in the last stages of finalizing a rule that would lay out the scope of exempting from the coverage requirement based on religious objections.

In case it wasn’t clear before, it should be now: One strategy employed by the anti-abortion movement is to litigate abortion rights and access out of existence. It’s not just litigation related to abortion restrictions or contraception coverage either. There’s a national campaign to drown providers in civil lawsuits for allegations they failed to report statutory rape cases.

Supreme Court Justice Ruth Bader Ginsburg spoke at the University of Chicago Law School over the weekend and said that while she wholeheartedly supports a woman’s right to choose abortion, the landmark Roe v. Wade decision was too sweeping and a disappointment because it was not argued in the crucial terms of advancing women’s rights but rather on the right to privacy. It’s a sobering assessment and one that couldn’t be more relevant.

Conservatives are already making the case that the Gosnell trial should spark federal action on abortion providers. Here, two prominent legal scholars take that call one step further and begin to lay out their claim that the Constitution demands it. The basis of this claim is, of course, fetal “personhood” and the argument that the equal protection clause of the 14th Amendment demands Congress act to protect the civil rights of the “unborn children” at every stage of pregnancy.

Finally, over two years ago the National Women’s Law Center filed complaints against many of the nation’s largest public school districts, arguing they were failing to meet their obligations under Title IX, the federal civil rights law that protects the right to equal opportunity in eduction regardless of gender. The school districts targeted each had double-digit disparities between the number of girl students attending high school and the number of girl students participating in athletics. Thanks to those complaints, Nevada’s largest public school district is now taking steps to make athletic opportunities available to all its students.

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