Legal Wrap: The Fallacy of Admitting Privileges Restrictions, and GOP Targets Another Female Judicial Nominee


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

Among the most popular of the extreme anti-choice legislation sweeping the states is a requirement that any physician who performs abortions at a clinic also have admitting privileges at an area hospital. On their face the restrictions sound reasonable, but Imani Gandy has this must-read piece on why admitting privileges requirements are neither good medical practice nor necessary under the law.

Last week, the Senate Judiciary Committee took up the nomination of Georgetown law professor Nina Pillard to the D.C. Circuit Court of Appeals. Pillard is by every measure an excellent nominee and should sail through the confirmation process, except that Republicans have hijacked the judiciary committee and are doing everything they can to tank Pillard’s nomination. Their latest outrage is over Pillard’s academic writing, where she explains that abstinence-only sex education curricula based on sex stereotypes could be unconstitutional and that public schools should not be teaching young girls they need to plan on being financially dependent on their husbands. These beliefs make Pillard a “militant” feminist, according to Sen. Chuck Grassley (R-IA) and Sen. Ted Cruz (R-TX) and, therefore, unfit for the bench. That position would be bizarre enough on its own but for the fact that Republicans are using it as an excuse to steal the court all together.

The birth control benefit in the Affordable Care Act took a significant step toward Supreme Court review with the U.S. Court of Appeals for the Third Circuit ruling that a for-profit company that is run by Mennonite Christians does not have religious exercise rights under either the Religious Freedom Restoration Act or the First Amendment. The ruling is in direct conflict with an earlier decision from the Tenth Circuit Court of Appeals, which held Hobby Lobby did have such rights. Normally, it’s up to the Supreme Court to resolve these kinds of federal court conflicts, and given the nature of the litigation challenging the benefit, I’d say it’s safe to assume the Roberts Court will step in during the 2013-2014 term that begins in October.

The state of Arizona was in court last week defending a law that bans abortions based on the sex or race of the fetus. The law, the state’s attorney general insists, is not discriminatory even though it is based on racial stereotypes of African-American and Asian Pacific women and not on actual abortions data in Arizona.

Supreme Court Justice Ruth Bader Ginsburg’s dissent in Shelby Co. v. Holder, the case that struck down a portion of the Voting Rights Act, warned that once states with a history of racial discrimination in elections no longer had federal oversight to dissuade them from continuing to try and suppress the vote, all the gains made possible by the Voting Rights Act would slide away. Since the decision, states like Texas and North Carolina have moved forward with racially discriminatory voter identification laws and redistricting plans, and on Friday Justice Ginsburg basically said, “I told you so.”

In other news, a case in Ohio showed the attack on abortion rights isn’t simply an attack on access, it’s a wholesale attempt to keep women in poverty or force them into traditional marriage and homemaker roles. Lawmakers in Ohio passed a budget that diverts Temporary Assistance to Needy Families (TANF) dollars to crisis pregnancy centers.

Elsewhere, the Kansas Supreme Court issued an important ruling in the fight over gun rights, holding that gun dealers must use the highest standard of care when selling weapons and that dealers can be held liable for violating gun laws under negligence per se standards. Gun reform advocates applauded the decision as one that will remove the profit motive from dealers for arming criminals and help victims of gun violence whose injuries are, in part, caused by irresponsible gun sales.

North Carolina legislature announced it would pay $10 million to victims of its coerced sterilization program. The state’s program was among the most extensive and long-running of its kind, sterilizing about 7,600 people—from 1929 to 1974—the state deemed socially or mentally unfit, which makes $10 million a paltry amount of compensation in comparison.

And last week an Atlantic County Superior Court judge in New Jersey ruled that casino waitresses are effectively “sex objects” and can be fired for putting on too much weight. The ruling came in a lengthy dispute between an Atlantic City casino and a group of 22 former waitresses. The waitresses, known as “Borgata Babes,” sued the casino, alleging weight discrimination based on a casino policy that prohibits casino waitresses from gaining more than 7 percent of their original body weight. In his ruling against the casino waitresses, Judge Nelson Johnson said the employer’s guidelines were fair, and that the women knew what would be expected of them from the start of their employment. “The Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to ‘sex objects’ to the Borgata’s patrons,” Johnson wrote, according to the Press of Atlantic City. “Nevertheless, for the individual labeled a babe to become a sex object requires that person’s participation.” Sigh.

Meanwhile, a Baton Rouge sheriff has been rounding-up and arresting men under the state’s anti-sodomy law, arguing that if the law is still on the books, it’s his job to enforce it and for the courts to sort out whether it’s enforceable. (Spoiler: It’s not.)

Finally, let’s end on some good news: In an unanimous decision, the Oregon Supreme Court upheld the state’s rape shield law, which closes to the public any pretrial proceedings on a victim’s sexual history. Under the law, which dates back to 1975, evidence of a victim’s sexual past is usually inadmissible in a trial for rape and some other sex crimes. But that evidence can be admitted if it relates to motive or bias, or is necessary to explain scientific or medical evidence offered by the state. The law requires the defendant to furnish a “written offer of proof,” and specifies that a hearing on relevance of evidence must be closed to the public. That portion of the law that requires a closed hearing to review the offer of proof was challenged as unconstitutional for violating an accused’s rights to a “public trial.” The state supreme court disagreed, holding there were enough protections and opportunity for the accused to attend the hearing and argue regarding the evidence to assure no constitutional violations while protecting rape victims from irrelevant and misleading character attacks intended to confuse the prosecution or dissuade victims from coming forward from the start.

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