Nomination Watch

Can it be that employers aren’t discriminating against women when they don’t cover prescription contraceptives?

In December 2000, the Equal Employment Opportunity Commission (EEOC), the agency that enforces Title VII, the federal law prohibiting sex discrimination in employment, ruled that an employer that does not cover prescription contraceptives in a generally comprehensive prescription drug plan is discriminating against women in the fringe benefits they provide. Since then, several district courts around the country have reached the same conclusion, and many companies - including Wal-Mart, the nation’s largest private employer - have begun providing contraceptive coverage for their employees. This coverage is not only fair - it is cost effective for employers.

But, last week, the Court of Appeals for the Eighth Circuit, in a 2-1 decision, rejected the views of the EEOC, reversed the Nebraska district court and found no discrimination against women in the employer’s failure to cover prescription contraceptives. In re: Union Pacific Railroad Employment Practices Litigation. The court’s 2-1 vote is a stark reminder of the importance of who our judges are - the decision was written by one of President Bush’s appointees, joined by a Reagan appointee, and the dissent was written by a Clinton appointee.

The good news is that Union Pacific recently changed its plan to include prescription contraceptives, and has announced that it would not take away the coverage following the court of appeals decision. But this erroneous court decision leaves women in the states it covers (Nebraska, North Dakota, South Dakota, Minnesota, Iowa, Missouri and Arkansas) without the legal protection they should have under Title VII so that all covered employers do the right thing.

contraceptive coverage Title VII Eighth Circuit

South Dakota update

Last November, we blogged about a positive decision striking down a biased consent law in South Dakota that required doctors to provide anti-choice ideological propaganda to patients seeking an abortion. That decision by a three-judge panel of the Eighth Circuit Court of Appeals is now in jeopardy because the court has decided that the case should be heard again in April before all eleven of the Eighth Circuit judges.

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Nominations speak louder than rhetoric . . .

As has been widely reported, the President has chosen to follow up his pledge to work for bipartisanship and cooperation with the renomination of four controversial candidates for the federal bench. By renominating individuals whose collective records reflect disdain for civil rights and individual liberties, contempt for environmental protection, questionable ethics and dubious qualifications, President Bush places partisan pandering over the national interest in a fair and competent judiciary. The Senate has had occasion - in some cases multiple occasions - to consider nominees Terrence Boyle, Michael Wallace, William G. Myers and William J. Haynes, and has not seen fit to bring their nominations to a floor vote. The President’s refusal to respect either the Senate’s concerns or the national sentiment shunning divisiveness suggests that the judicial nominations battle may be far from over.

judicial nominations civil rights

. . . and a reminder about why what we are hearing is a problem

A recent decision by the Sixth Circuit demonstrates the importance of the role played by Court of Appeals judges. With very few cases reviewed by the Supreme Court, the Courts of Appeals frequently provide the final authority on cases that raise critical issues surrounding women’s health and welfare. For example, in a recent case, Cincinnati Women’s Services v. Taft, the Sixth Circuit reviewed two provisions of an Ohio statute that could be dangerous to women. While the Court did strike down one provision, it upheld the second - using an analysis that spells trouble for women’s reproductive rights.

Under the Supreme Court’s “undue burden” test, states may impose restrictions on a woman’s access to abortion only if they do not create an undue burden, or substantial obstacle, in her path. Instead of focusing on the severity of the burden imposed on an individual woman’s exercise of her right to choose, as courts have traditionally done, the Sixth Circuit required that a restriction, even if extremely burdensome to some women, could be upheld as long as, in its view, not enough women would be harmed.

Using this dangerous rationale which explicitly sanctions government restrictions that clearly harm some women, the court upheld a requirement that women must have an in-person meeting with a physician at least 24 hours before the procedure despite the fact that it was harmful and even life-threatening for some abused women. Those women for whom this law forecloses the option of abortion do not suffer any less because others may still be able to obtain abortions. This case starkly portrays why judges matter, and how those who are hostile to women’s rights can cause great harm to women across the country.

abortion court of appeals reproductive rights

Eighth Circuit: Doctor’s office is no place for politics

In a 2-1 ruling, the Eighth Circuit has protected the free speech rights of doctors and the right to choose of their patients by halting the enforcement of a South Dakota law that would have commandeered the doctor-patient relationship in the service of an ideological agenda. The 2005 law requires doctors performing abortions to tell their patients that the procedure will “terminate the life of a whole, separate, unique, living human being” and that the patient has “an existing relationship with that unborn human being.” Doctors who refuse to make these “disclosures” could face criminal prosecution. After Planned Parenthood brought suit, the district court issued a preliminary injunction against the law, saying that the state cannot require doctors to “espouse the state’s theology.”

Reviewing the district court’s injunction, Eighth Circuit Judges Diana Murphy (appointed by President Clinton) and Michael Molloy (appointed by President G.W. Bush) agreed that the doctors were likely to succeed in proving that the law violated their First Amendment rights against compelled speech.  The Court stated that the law “does little to promote independent decision making and may actually exacerbate any adverse psychological consequences of the procedure.” Judge Raymond Gruender (also appointed by President G.W. Bush) dissented, actually stating that the disclosure was truthful, non-misleading and non-ideological on its face. Fortunately, Judge Gruender’s version of the truth didn’t carry the day in this case.

Victory in the 6th Circuit: something to cheer about in Michigan

Today, the 6th Circuit Court of Appeals reaffirmed a decision finding that the Michigan High School Athletic Association (MHSAA) discriminates against female high school athletes by scheduling only their sports in nontraditional and less advantageous seasons, in violation of the U.S. Constitution and Title IX.  The National Women's Law Center’s Co-President Marcia Greenberger had this to say about the ruling, “After eight long years, Michigan girls can finally cheer. The court has once again ruled that the facts and the law are on the side of Michigan high school girls.  MHSAA must stop forcing these girls to play second string and instead ensure that they have the athletic opportunities they deserve.” To read the full press release go here.

Nipping at South Dakota’s heels. . .

It didn’t take long after the Governor of South Dakota signed that state’s criminal ban on nearly all abortions for other states to move in the same direction.  The Wall Street Journal reports that the Governor of Mississippi chimed in with his eagerness to do the same, and that eight other states are considering similar steps.  Among these are Ohio, Michigan and Missouri.  According to the WSJ, “Those state officials, like conservative activist groups, are emboldened by a rightward shift throughout the federal bench during the Bush administration. As a result, they show increasing willingness to test the staying power of the Supreme Court’s 1973 Roe [v. Wade] decision, which placed abortion rights within the Constitution’s privacy protections.”

The Journal continues by noting that the reversal of Roe would “clear the way for a state-by-state battle over whether, and under what circumstances, abortion could remain legal.”  True enough -- but it could be even worse.  The Journal says “Six states, including California, have codified Roe, essentially guaranteeing the right to abortion even if Roe is overturned.”  That is not correct, sadly.  If Roe were overturned, Congress could pass and the President could sign a federal abortion ban that would override the laws in those states.  So it would be a mistake for women even in those states – or with the resources to travel to those states to escape their own state’s abortion bans -- to feel sanguine about their rights.

women's rights south dakota abortion ban

South Dakota law banning most abortions sets up challenge to Roe v. Wade

Today, South Dakota Governor Mike Rounds signed a law that bans almost all abortions in the state.  The law will be challenged in court, and is clearly intended as a frontal assault on Roe v. Wade.  In fact, the Governor frankly said that he hopes the law “will give the United States Supreme Court…[an] opportunity to reconsider an earlier opinion,” clearly referring to Roe.  NWLC Co-President Marcia Greenberger had this to say:

“South Dakota’s newly passed abortion ban displays contempt for women and utter disregard of their health and well-being. The South Dakota ban is intended to challenge more than 30 years of Supreme Court protection of a woman’s most basic right to make personal and private health decisions with her family, her physician and according to her conscience, and not the dictates of politicians.

“Women in South Dakota must now look to the courts to protect their health and their rights. With Roe v. Wade hanging by a thread, the specter of dangerous, back alley abortions is all too real. Unfortunately, some other states are poised to follow South Dakota’s lead. Others are pressing to enact a combination of barriers that would make legal abortion all but unobtainable for most women. And some in Congress are determined to follow a similar strategy so that nationwide most abortions would be out of reach for most women. These are perilous times for women and families, who must fight to keep their hard-won rights.”

women's rights south dakota abortion ban

How thoughtful: a thank-you note to the far right

It is being reported today that Justice Alito has written a thank-you note to James Dobson, founder and Chairman of Focus on the Family, to express his appreciation for all the "help and support" that Dobson and his organization provided during "the past few challenging months" -- i.e., during the debate over the confirmation of Justice Alito to the Supreme Court.  He continued, "As long as I serve on the Supreme Court I will keep in mind the trust that has been placed in me," and said he hopes to meet Dobson personally in the future.  You can read the full letter here.

Focus on the Family, in case you're not familiar with it, is a far-right organization that is virulently anti-choice, anti-gay rights, pro-prayer in the schools.  Dobson read the letter from Justice Alito in a radio broadcast, and crowed that the group's support for the Alito and Roberts nominations had "affected history" by helping put these justices on the court in time to hear a challenge to a federal abortion ban.   

We can only hope that in sending this letter, Justice Alito was merely trying to be courteous and did not mean to imply that on the Court he intends to serve the agenda of Focus on the Family or those like it who helped put him there.

supreme court

New study finds Bush-appointed trial judges are the most conservative on record

A new study by scholars at the University of Houston has found that the decisions of federal district court judges appointed by President Bush are significantly more conservative than decisions issued by judicial appointees of any other modern American president – especially when it comes to civil rights and civil liberties. 

Political science professor Robert Carp and his team compiled a database of more than 75,000 opinions published by nearly 1,800 federal judges from 1933 to fall 2005, including 795 decisions handed down by judges appointed by President George W. Bush. The study examined cases in several issue areas where a liberal-conservative distinction was readily discernible, including civil rights, civil liberties, labor and economic regulation, criminal justice and the right to privacy.  The researchers found that this Administration’s trial court judges are not only the most conservative of those of the eight most recent presidents (three Democrats and five Republicans) but the most conservative of any president going back to Woodrow Wilson.  On civil rights and civil liberties, President Bush’s district court judges were found to be approximately 20% less likely than those appointed by Ronald Reagan – hardly known for being a liberal President or appointing liberal judges -- to hand down an opinion that could be called liberal.  The Bush judges’ decisions on privacy issues including abortion were also significantly more conservative than those of other judges, although the researchers are careful to note that the sample in this area is not yet big enough to be conclusive.

The study will be published in a forthcoming book called Principles and Practice of American Politics: Classic and Contemporary Readings, 3rd Edition, edited by Samuel Kernell and Steven S. Smith. 

Note that this study does not even take into account Court of Appeals judges – and we know that some of the Bush appointees to those courts have pre-nomination records demonstrating extremely conservative views.   Just wait until judges like Janice Rogers Brown, on the D.C. Circuit, begin to make their presence felt. 

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