Federal Court Throws Out Abortion Restrictions In Texas

Republicans in control of state governments have been trying to restrict access to both abortion and contraception but on Friday a federal judge rule against new restrictions on abortions in Texas:

A federal judge in Austin, Tex., blocked a stringent new rule on Friday that would have forced more than half of the state’s remaining abortion clinics to close, the latest in a string of court decisions that have at least temporarily kept abortion clinics across the South from being shuttered.

The Texas rule, requiring all abortion clinics to meet the building, equipment and staffing standards of hospital-style surgery centers, had been set to take effect on Monday. But in his opinion, Judge Lee Yeakel of the United States District Court in Austin said the mandate placed unjustified obstacles on women’s access to abortion without providing significant medical benefits.

The rule “is unconstitutional because it imposes an undue burden on the right of women throughout Texas to seek a pre-viability abortion,” he wrote.

Think Progress has more on Republican efforts to restrict abortions using sham health laws:

One of the most significant innovations developed by lawyers and lawmakers who oppose abortion are sham health laws that, on their surface, appear intended to make abortions safer, but which have the practical effect of making abortions difficult or impossible to obtain. Texas’s House Bill 2 (HB2) is one of these laws. Last October, a provision of HB2 took effect that prohibited doctors from performing abortions unless they have admitting privileges in nearby hospitals. Judge Yeakel halted that provision shortly before it took effect, noting that “there is no rational relationship between improved patient outcomes and hospital admitting privileges.” The Fifth Circuit reinstated the law only a few days later.

On Monday, another provision of HB2 is supposed to take effect. This provision imposes rigid new architectural requirements on Texas abortion clinics, including “electrical, heating, ventilation, air conditioning, plumbing, and other physical plant requirements as well as staffing mandates, space utilization, minimum square footage, and parking design” requirements. Many clinics are physically incapable of complying with these requirements in their existing locations. For those clinics, “[t]he cost of acquiring land and constructing a new compliant clinic will likely exceed three million dollars.” The remaining clinics can expect to pay as much as 1.5 million dollars to bring their facilities into compliance with the law. According to Yeakel’s opinion, should this provision of the law take effect, “only seven facilities and a potential eighth will exist in Texas that will not be prevented . . . from performing abortions.”

Before HB2 became law, by contrast, there were 40 licensed abortion clinics in Texas.

The new architectural requirements require abortion clinics to meet the standards established for what are known as “ambulatory surgical centers” in the state of Texas. Yet, as Yeakel explains, there’s little good reason to treat abortion clinics this way. Many clinics, for example, do not perform surgical abortions at all, only medication abortions that use drugs to terminate a pregnancy. Yet the Texas law requires abortion clinics that perform no surgeries whatsoever to undertake expensive renovations that transform them into surgical facilities.

Even in clinics that do perform surgical abortions, women are more likely to experience higher health risks because HB2 forces clinics close to them to shut down then they are to gain some benefit from the new restrictions. “Higher health risks associated with increased delays in seeking early abortion care, risks associated with longer distance automotive travel on traffic-laden highways, and the act’s possible connection to observed increases in self-induced abortions almost certainly cancel out any potential health benefit associated with the requirement.”

The most remarkable portion of Yeakel’s opinion, however, may be the fact that he does not simply analyze the effect of Texas’s law. He also accuses the state of outright dishonesty. Responding to the state’s argument that some Texans can seek abortions in New Mexico if they are unable to obtain one in Texas thanks to HB2, Yeakel notes that this argument completely undermines any suggestion that these laws are supposed to protect women’s health:

If the State’s true purpose in enacting the ambulatory-surgical-center requirement is to protect the health and safety of Texas women who seek abortions, it is disingenuous and incompatible with that goal to argue that Texas women can seek abortion care in a state with lesser regulations. If, however, the State’s underlying purpose in enacting the requirement was to reduce or eliminate abortion in parts or all of Texas, the State’s position is perfectly congruent with such a goal.

Yeakel, in other words, calls a sham a sham. He recognizes, in the words of the Supreme Court, that the purpose HB2 is to “place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” And he comes just one step from outright accusing the state of lying when it claims that the law was actually enacted to protect women’s health.

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Can John Hinckley Be Tried For The Murder Of James Brady?

Jamess Brady

Having completed countless death certificates over the years I find these to be far less meaningful than the general public--a fact that I bet most physicians are well aware of. The cause of death is often questionable, especially when a patient dies at  home and no autopsy is done. In that case we must assume that the medical examiner is correct when they say that the cause of death is natural, and typically attribute the cause to whatever chronic conditions the patient might have. Realistically we know that there are also many other possibilities which might have caused death such as a sudden myocardial infarction, arrhythmia, or pulmonary embolism. This week we saw an unusual situation in which a death was ruled to be homicide years after a shooting, in the case of James Brady. It is certainly a valid argument that he did die from medical problems which arose as a consequence of the shooting, and knowing the common ambiguities in death certificates I see no problem with attributing the cause of death to the shooting.

This has ramifications beyond the cause of death on the death certificate, ranging from adding to the homicide rate to raising the question of whether the shooter, John Hinckley, could now be tried for murder. A couple of attorney bloggers, Doug Mataconis and Eugene Volokh  have looked at this issue. Volokh’s opinion is that Hinkley cannot be tried for murder for two reasons:

1. The year-and-a-day rule: At common law, a murder charge required that “the death transpired within a year and a day after the [injury]” (see Ball v. United States (1891), and this apparently remains the federal rule (see United States v. Chase (4th Cir. 1994)). Many states have apparently rejected this rule, given the changes in modern medicine that make it much easier to decide whether an old injury helped cause a death; but though the Supreme Court in Rogers v. Tennessee (2001) held that a court could retroactively reject the rule without violating the Ex Post Facto Clause (which applies only to legislative changes to legal rules) and the Due Process Clause, any such retroactive rejection of the year-and-a-day rule seems unlikely in this case (given that for the rule to be reversed the case would likely need to go up to the Supreme Court, and that in any event the rule had been applied relatively recently, in Chase).

UPDATE: But wait! Hans von Spakovsky points out that D.C.’s highest court rejected the year-and-a-day-rule in United States v. Jackson (1987). I at first didn’t check the D.C. precedents, focusing just on precedents from the normal article III federal system, since Hinckley was tried in federal district court. But Hinckley was tried for violating D.C. law as to the shooting of Brady (though the case was in federal district court because of the federal charges as to the shooting of President Reagan and the Secret Service agent), and by hypothesis would be retried for violating D.C. law. It is D.C. law that would apply here.

Yet Jackson was a 1987 case, decided after the Hinckley shooting. It expressly stated that, as of 1987, the year-and-a-day rule was in effect under D.C. law:

The common law of the District of Columbia encompasses all common law in force in Maryland in 1801, unless expressly repealed or modified. [Citations omitted throughout. -EV] In 1776, Maryland adopted the common law of England as it then existed. Therefore, we look to early Maryland law to resolve the question whether the year and a day rule is law in the District of Columbia.

The Court of Appeals of Maryland has held [in 1974 and in 1985] that the year and a day rule is part of the common law of Maryland because it was part of the English common law in 1776. A division of this court (in an opinion subsequently vacated for reasons not pertinent here) has unanimously concluded [in 1979] that the rule retains its viability in the District of Columbia. In re J.N., Jr., 406 A.2d 1275, 1283 (D.C. 1979).

We follow this reasoning in concluding that the common law year and a day rule is today the law in the District of Columbia.

And the D.C. court (in Jackson) expressly held (based on the Ex Post Facto Clause) that its abrogation of the rule would thus apply only prospectively, to prosecutions after that decision.

What should the effect of that be? On one hand, as I noted above, the U.S. Supreme Court in Rogers held that Tennessee courts could change the rule without violating the Ex Post Facto Clause, so that might undermines Jackson‘s prospectivity-only reasoning. This might mean that the prospective-only rule can be retroactively changed to a retroactivity-OK rule.

But on the other hand, Jackson expressly stated — in a discussion of substantive D.C. law, not of the Ex Post Facto Clause — that, as of 1987, the year and a day rule was still the law in D.C. And the U.S. Supreme Court in Rogers stressed that “perhaps [the] most important[]” part of the reasons for its acceptance of the Tennessee court’s retroactive rejection of the rule was that, “at the time of petitioner’s crime the year and a day rule had only the most tenuous foothold as part of the criminal law of the State of Tennessee.” The D.C. Court of Appeals’ analysis in Jackson makes clear that “at the time of [Hinckley's crime] the year and a day rule” had much more than a “tenuous foothold” as part of D.C. criminal law.

So I think that, if Hinckley were tried now for murder under D.C. law (which he couldn’t be, for the independent reasons below, but let’s set those aside for now), he would be tried under D.C. law as it existed in 1981, at the time of the shooting. And, given the D.C. highest court’s analysis of D.C. law in Jackson, that as-of-1981 law would include the year-and-a-day rule, which would make Hinckley substantively not guilty of the crime of murder.

2. Double jeopardy and collateral estoppel: But say the year-and-a-day rule didn’t apply here — hasn’t Hinckley already been tried for the shooting, and doesn’t the Double Jeopardy Clause stop him from being retried? The answer is yes, but in a circuitous way.

a. It’s OK to try someone for murder, even if he’s already been convicted of the attempted murder: If Hinckley had been tried for attempted murder and found guilty when Brady was still alive, he could be tried for murder after Brady died. Indeed, this is pretty much what happened in Diaz v. United States (1912), and this remains the law today, see Garrett v. United States (1985):

In Diaz v. United States, 223 U.S. 442 (1912), the Court had before it an initial prosecution for assault and battery, followed by a prosecution for homicide when the victim eventually died from injuries inflicted in the course of the assault. The Court rejected the defendant’s claim of double jeopardy, holding that the two were not the “same offense” ….

For a recent state case applying this rule, see State v. Hutchinson (N.H. 2011), which also cites other cases from other states.

b. It’s sometimes OK to try someone for murder, even if he’s already been acquitted of the attempted murder: Say someone (not as in the Hinckley case) acted extremely recklessly and injured someone else as a result. If the reckless person were tried for attempted murder, he’d be acquitted, because attempted murder generally requires a conscious purpose to kill, not just reckless endangerment.

But say the injured person then dies. The defendant could then be retried for murder, and convicted, because actual murder (not attempted murder) can happen even if the defendant didn’t have a conscious purpose to kill, so long as he was extremely reckless.

c. But the jury’s conclusion that Hinckley was insane is now binding on the government, and thus precludes a retrial for murder: Under the “collateral estoppel” doctrine (Ashe v. Swenson (1970)), “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” That’s most commonly applied in civil cases, but it also applies in criminal cases, against the government (so long as it’s the same government involved in both cases).

The jury determined by a valid and final judgment that Hinckley was insane, and thus couldn’t be liable for attempted murder. This judgment is binding on the government, and since the insanity defense applies the same way for murder as for attempted murder, it means that Hinckley would now be conclusively presumed to have been insane for purposes of any murder prosecution as well. He would have an ironclad defense to the murder charge, and thus any case against him couldn’t proceed. For a similar case, see United States v. Oppenheimer (1916), though there the defense was the statute of limitations rather than insanity.

(Note that The federal insanity defense has been considerably narrowed since the Hinckley trial — indeed, as a result of the Hinckley trial. But this legislative narrowing can’t be retroactively applied, given the Ex Post Facto Clause.)

So no retrial for Hinckley, despite the medical examiner’s conclusion, and even if that conclusion could be proved beyond a reasonable doubt.

Mataconis concluded his post by saying that, “Ultimately, the question of whether or not murder charges are brought will be in the hands of the U.S. Attorney in Washington, and the District’s Attorney General. As things stand right now, though, it seems as though such charges would be on legally tenuous grounds.”

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Another Frivolous Suit Against Obamacare Thrown Out Of Court

There have  been a lot of frivolous suits filed by various Republicans lately, ranging from suits to try to block the Affordable Care Act to the House Republicans’ own suit. While we had contradictory rulings in the case making the absurd argument that the ACA did not intend to allow subsidies to those who obtained coverage on the federal as opposed to a state exchange, another ridiculous argument was thrown out of court this week.

The argument was that the Affordable Care Act is unconstitutional because of the requirement that revenue bills originate in the House, and the ACA does include mechanisms to raise revenue to pay for the law. The argument never made much sense but it has attracted increased attention among conservatives since George Will had a column on how the Supreme Court doomed the ACA in its ruling that the government had the power to charge a penalty for noncompliance with the mandate based upon the power to tax.

There are two major errors in this argument. First is that there is precedent for the Senate to take a House bill and then pass it with major changes, and still have this considered to have originated in the House. As the House also passed their own version of health care reform, this was sufficient to meet this criteria. Secondly, the courts have long differentiated between a bill with a primary purpose of levying taxes versus a bill which incidentlaly raises revenue. The Appeals court argued that, “The Supreme Court has held from the early days of this nation that revenue bills are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue.”

Consider the irony in two of the Republican arguments against the bill. In this case the Republicans oppose the Affordable Care Act because it contains provisions to pay for itself. While Democrats have adopted a pay as you go attitude towards new government programs, Republicans prefer to purchase their programs on credit, such as with the Iraq War and George Bush’s Medicare D Program. When it is Republicans spending the money, deficits don’t matter.

In the case of the House law suit, Republicans are suing Obama for delaying implementation of a portion of the law (the mandate on small business) which they have claimed would be harmful and want repealed. Republicans also had no objection to a similar delay by George Bush in enforcing requirements of the Medicare D program.

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Activist Conservative Judges Attempt To Destroy Obamacare, Causing Potential Problems For Republicans

We had two different federal appeals court panels give conflicting rulings on Tuesday regarding the legality of subsidies in the Affordable Care Act. This came about due to some ambiguities in the writing of the law–primarily a proof reading error at one point which suggests that only insurance purchased in state exchanges can allow subsidies. The bulk of the law makes it clear that people purchasing coverage can qualify for subsidies regardless of whether purchased on a federal or state exchange.

It is impossible to predict with certainty, but legal experts are generally predicting that the Supreme Court would follow precedent and go with the overall intent of the law as opposed to allowing the conservative activist judges from the United States Court of Appeals for the District of Columbia to overturn the law.

In the event that the Supreme Court should support this idea we could then have a rather chaotic situation. About 4.5 million people would lose their subsidies, making many people very angry at any Republican politicians who refused to work towards a fix.  There would be two potential solutions. One would be for each state to build their own exchange. Presumably they would now have the benefit of the experience of those working on the federal exchange, so this might not be as difficult as it sounds. However, a far simpler solution would be for Congress to pass legislation to clear up the ambiguous wording in the Affordable Care Act which led to this situation.

We could have rather interesting political battles if Republicans would continue to call for repeal and refuse to act to make the fix. This would anger many voters who in effect are receiving a significant tax increase by losing their subsidies, and ultimately might lose their medical care. Would Republicans stick to demanding repeal or be forced to give into demand to allow people to receive the subsidies and continue their insurance coverage? If I was a Republican politician, I think I might hope that the Supreme Court rules in favor of the current subsidies and avoids this political problem.

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Boehner Throws Small Business Owners Under The Bus In Order To Find Suit To File Against Obama

The weakness of Republican efforts to paint Barack Obama as a dictator who has been abusing his presidential powers have been shown to be a sham with John Boehner’s attempt to find grounds for a law suit against Obama. Boehner, in a desperate attempt to ward off the Tea Party fanatics who are pushing for impeachment, decided on filing a frivolous law suit against Obama instead. For years Republicans have made all sort of claims of executive overreach under Obama, after ignoring real cases of abuse of executive power under Bush and Cheney. With all their screaming of a dictatorial president out of control, all Boehner could come up with was a complaint that Obama postponed enforcing the penalties in the employer mandate contained in the Affordable Care Act by two years.

The biggest irony here is that Republicans opposed the Affordable Care Act and the employer mandate (despite previous Republican support for mandates before Obama called for them). Republicans are suing Obama for failing to enforce a law which they opposed. Obama granted the two year extension in order to make it easier for small business to comply with the Affordable Care Act. With this suit, Boehner and the House Republicans are taking a stand in opposition to the interests of small business owners.

Of course Republicans had no objection when George Bush made a similar delay durinig implementation of the Medicare D program. Clearly if there was any validity to any of the other Republican complaints against Obama’s use of power they would use a different case for the lawsuit. As Brian Buetler posted, John Boehner’s Lawsuit Against Obama Proves the President Isn’t Lawless.

Obama is correct in calling this a political stunt and had these comments on the do-nothing Congress:

As long as Congress will not increase wages for workers, I will go and talk to every business in America if I have to. There’s no denying a simple truth: America deserves a raise, and if you work full-time in this country, you shouldn’t live in poverty. That’s something that we all believe.

Now, here’s where it gets interesting. There are a number of Republicans, including a number in the Texas delegation, who are mad at me for taking these actions. They actually plan to sue me. Now, I don’t know which things they find most offensive — me helping to create jobs, or me raising wages, or me easing the student loan burdens, or me making sure women can find out whether they’re getting paid the same as men for doing the same job. I don’t know which of these actions really bug them.

The truth is, even with all the actions I’ve taken this year, I’m issuing executive orders at the lowest rate in more than 100 years. So it’s not clear how it is that Republicans didn’t seem to mind when President Bush took more executive actions than I did. Maybe it’s just me they don’t like. I don’t know. Maybe there’s some principle out there that I haven’t discerned, that I haven’t figure out. You hear some of them — ‘sue him,’ ‘impeach him.’ Really? Really? For what? You’re going to sue me for doing my job? Okay.

I mean, think about that. You’re going to use taxpayer money to sue me for doing my job — while you don’t do your job.

There’s a great movie called ‘The Departed’ — a little violent for kids. But there’s a scene in the movie where Mark Wahlberg — they’re on a stakeout and somehow the guy loses the guy that they’re tracking. And Wahlberg is all upset and yelling at the guy. And the guy looks up and he says, ‘Well, who are you?’ And Wahlberg says, ‘I’m the guy doing my job. You must be the other guy.’ Sometimes, I feel like saying to these guys, ‘I’m the guy doing my job, you must be the other guy.’

So rather than wage another political stunt that wastes time, wastes taxpayers’ money, I’ve got a better idea: Do something. If you’re mad at me for helping people on my own, let’s team up. Let’s pass some bills. Let’s help America together.

It is not clear what will become of this suit. The first question is whether the House has legal standing to file the suit. If it does proceed it is certainly possible that both Bush and Obama technically broke the law in extending deadlines independent of Congress. Even should there ever be a  ruling against Obama, it will not make much of a difference. By the time it works through the courts the issue will no longer matter as the temporary extension will be coming towards an end, if not already ended. It is over a pretty minor issue in the implementation of the Affordable Care Act and will have no bearing on the overall law. It is a pretty empty gesture by Boehner, but he has no real grounds to support right wing rhetoric that Obama has abused executive power.

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Hobby Lobby Case Shows That To Conservatives Freedom Means “Freedom” To Impose Their Religious Views Upon Others

Conservatives applauding the Supreme Court decision in the Lobby Hobby case are showing, once again, that to them freedom means the “freedom” to impose their religious views upon others. When conservatives oppose the requirement that a business provide insurance to their employees in any condition they might have a consistent libertarian argument, ignoring the fact that many Republicans supported such mandates, along with the individual mandate, until quite shortly before the Affordable Care Act was passed. When they fight for a specific exclusion based upon some people’s religious views about contraception then we have an entirely different matter. As I noted yesterday, this is hardly any type of victory for religious freedom.

It might be a different matter if all the employees shared the views of their employers, but the reality is that the employers of Hobby Lobby are forcing their views upon their employees. As The New York Times points out:

Nothing in the contraceptive coverage rule prevented the companies’ owners from worshiping as they choose or advocating against coverage and use of the contraceptives they don’t like.

Nothing compels women to use their insurance on contraceptives. A woman’s choice to use or not to use them is a personal one that does not implicate her employer. Such decisions “will be the woman’s autonomous choice, informed by the physician she consults,” as Justice Ginsburg noted. There also is no requirement that employers offer employee health plans. They could instead pay a tax likely to be less than the cost of providing insurance to help cover government subsidies available to those using an insurance exchange.

Including contraception coverage in health insurance also isn’t likely to increase the cost to employers as preventing unwanted pregnancies is less expensive than covering the medical expenses of such pregnancies. Nor can denial of coverage of contraception be justified based upon religious opposition to abortion as making contraception more readily available is an effective means of reducing the number of abortions. This is purely a matter of forcing the religious opposition to contraception held by the religious right upon others.

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Conservative Activist Court Rules That Employers Can Impose Their Religious Views On Employees In Hobby Lobby Case

Republicans have long claimed that Roe v. Wade was an act of an activist court to impose liberal views upon them, energizing many religious conservatives to turn out to vote for them. Today’s Supreme Court decision allowing come companies to avoid the requirements in the Affordable Care Act to include contraception on religious grounds might do the opposite. This decision will undoubtedly anger many women who will see this as meaning that their access to contraception coverage is dependent upon their employer, while the Affordable Care Act was intended to free them of this limitation and provide access to affordable contraception. It also highlights what has been clear for years that the agenda of the religious right is to block not only abortion but contraception.

Mother Jones has gathered eight of the best lines in Ruth Bader Ginsburg’s dissent in the Hobby Lobby case:

  • Ginsburg wrote that her five male colleagues, “in a decision of startling breadth,” would allow corporations to opt out of almost any law that they find “incompatible with their sincerely held religious beliefs.”
  • “The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage”
  • “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”
  • “Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.”
  • “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”
  • “Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.”
  • “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution's] Establishment Clause was designed to preclude.”
  • “The court, I fear, has ventured into a minefield.”

Think Progress pointed out how this is not a victory for religious freedom and hurts people of faith:

But while conservatives would have the American public believe that protecting Hobby Lobby is about protecting all religious people, the reality is that today’s ruling actually hurts people of faith. In fact, a Public Religion Research Institute (PRRI) survey conducted in early June found that a substantial majority of almost every major U.S. Christian group support the idea that publicly-held corporations and privately-owned corporations should be required to provide employees with healthcare plans that cover contraception and birth control at no cost. This is likely why so many progressive Christian leaders have vocally opposed Hobby Lobby in the press, why Americans United for the Separation of Church and State submitted an amicus brief to the Supreme Court opposing Hobby Lobby on behalf of nearly 30 religious organizations, and why both the Jewish Social Policy Action Network and the American Jewish Committee submitted their own amicus briefs decrying the corporation’s position.

And while white evangelicals were an outlier in the PRRI poll — only 40 percent of evangelical respondents supported the ACA’s contraception mandate for privately-owned corporations — a sizable cadre of conservative Christians have publicly articulated nuanced, faith-based opposition to the case in recent months, drawing attention to the fact that Hobby Lobby only speaks for a small minority of people of faith in America. David Gushee, an evangelical Christian professor of Christian Ethics and director of the Center for Theology and Public Life at Mercer University, offered an extensive treatment of the case in the Associated Baptist Press in April. He examined the issue from the perspective of a Christian theologian, noting that any attempt to broaden the legal status of businesses to include religious exemptions — however well-intentioned — is inconsistent, dangerous, and unfair to other religious Americans.

“One way to look at it is this: The whole point of establishing a corporation is to create an entity separate from oneself to limit legal liability,” he writes. “Therefore, Hobby Lobby is asking for special protections/liability limits that only a corporation can get on the one hand, and special protections that only individuals, churches and religious organizations get, on the other. It seems awfully dangerous to allow corporations to have it both ways.“

In addition to fearing the social implications of a pro-Hobby Lobby ruling, other evangelical Christians take umbrage with the theological premise undergirding their case — namely, that opposing the ACA mandate is somehow an extension of a pro-life position. Richard Cizik, former Vice President for Governmental Affairs for the National Association of evangelicals, wrote in the Huffington Post this weekend that evangelicals who support Hobby Lobby “are not actually being pro-religious freedom or pro-life.” Similarly, Julia K. Stronks, evangelical Christian and political science professor at Whitworth University, teamed up with Jeffrey F. Peipert, a Jewish family-planning physician, to pen an op-ed for Roll Call earlier this month in which they argue that granting Hobby Lobby religious exemption will actually lead to more abortions. They write:

Although the owners of these for-profit corporations oppose the contraceptive requirement because of their pro-life religious beliefs, the requirement they oppose will dramatically reduce abortions. … Imagine a million fewer unintended pregnancies. Imagine healthier babies, moms and families. Imagine up to 800,000 fewer abortions. No matter your faith or political beliefs, our hunch is that we can all agree that fewer unplanned pregnancies and fewer abortions would be a blessing.

Jonathan Merritt, an evangelical Christian writer and blogger for the Religion News Service, went even further in his theological challenge to the case, arguing that conservative evangelicals shouldn’t call businesses “Christian” in the first place.

“The New Testament never—not one time—applies the ‘Christian’ label to a business or even a government,” he writes. “The tag is applied only to individuals. If the Bible is your ultimate guide, the only organization one might rightly term ‘Christian’ is a church. And this is only because a church in the New Testament is not a building or a business, but a collection of Christian individuals who have repented, believed on Christ, and are pursuing a life of holiness.”

These voices represent the majority of religious Americans who insist that today’s pro-Hobby Lobby decision isn’t about protecting “religious liberty.” Instead, it’s just a victory for one kind of religion, specifically the (usually conservative) faith of those privileged enough to own and operate massive corporations. That might be good news for the wealthy private business owners like the heads of Hobby Lobby, but for millions of religious Americans sitting in the pews — not to mention thousands working in Hobby Lobby stores — their sacred and constitutional right to religious freedom just became compromised.

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Favorable Court Rulings From Privacy Of Cell Phone Data To Marriage Equality

It has been a good week in terms of judicial opinions. Following the decision I reported on yesterday that the current no-fly list procedure is unconstitutional, there was an even bigger decision regarding civil liberties as well as two decisions regarding same-sex marriage. The Supreme Court unanimously ruled that police cannot search the contents of cellphones without a warrant:

In a sweeping victory for privacy rights in the digital age, the Supreme Court on Wednesday unanimously ruled that the police need warrants to search the cellphones of people they arrest.

While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies.

“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”

Chief Justice John G. Roberts Jr., writing for the court, was keenly alert to the central role that cellphones play in contemporary life. They are, he said, “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

But he added that old principles required that their contents be protected from routine searches. One of the driving forces behind the American Revolution, Chief Justice Roberts wrote, was revulsion against “general warrants,” which “allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”

“The fact that technology now allows an individual to carry such information in his hand,” the chief justice also wrote, “does not make the information any less worthy of the protection for which the founders fought.”

A federal judge in Indiana ruled that Indiana’s ban on same sex marriage is unconstitutional.

A federal judge ruled Wednesday that Indiana’s ban on gay marriage is unconstitutional, immediately allowing same-sex couples across the state to receive marriage licenses.

U.S. District Judge Richard Young did not issue a stay on his ruling. However, the office of Attorney General Greg Zoeller, which represented the state, filed an emergency motion for stay pending appeal with the U.S. District Court this afternoon…

Young’s decision in the Indiana case mirrors “what we’re seeing in all the districts courts” that have taken up challenges, said Carl Tobias, a University of Richmond School of Law professor who has been closely monitoring court cases across the U.S. involving the same-sex marriage issue.

The order says: “It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love.”

Judges in more than a dozen other federal district courts have ruled along the same lines as Young, he said. Since the first ruling in a Utah case in December, he said, every challenge to a state ban has been successful.

The rulings by these federal district courts are being appealed and ultimately the decision will probably be made by the Supreme Court. While it will take at least until next year to see how that plays out, the 10th Circuit Court has upheld the decision of a Utah judge:

A federal appeals court on Wednesday ruled that states outlawing same-sex marriage are in violation of the U.S. Constitution.

By upholding a Utah judge’s decision, a three-member panel of the 10th Circuit Court of Appeals in Denver became the first appeals court in the nation to rule on the issue, setting a historic precedent that voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process…

University of Utah law professor Clifford Rosky called Wednesday’s ruling, “the most important victory of the entire gay rights movement.”

It is the first time a federal appeals court has recognized that same-sex couples have the same fundamental right to marry as all Americans, said Rosky, chairman of Equality Utah’s board of directors.

“Very few courts have embraced the fundamental rights argument and this court seems to have completely embraced it and applied ‘strict scrutiny,’ the highest standard recognized under constitutional law,” Rosky said…

The ruling affects all states in the 10th Circuit Court of Appeals: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

The court’s majority opinion focused on the 14th Amendment, which gives equal protection to American citizens. The court said its reading of the Constitution shows that the legal rights of married couples has nothing to do with the gender of those in the union.

“We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage.

 

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Texas Ban On Same Sex-Marriage Ruled Unconstitutional

In the first of two major items of good news with respect to preventing right wing restrictions on individual liberty, a Federal judge has ruled that Texas’ law banning same-sex marriage is unconstitutional. U.S. District Judge Orlando Garcia cited recent U.S. Supreme Court rulings as having trumped Texas’ moves to ban gay marriage.

Today’s court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the U.S. Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our U.S. Constitution.

Laws against gay marriage have been struck down in seven states including Texas in the past sixty-five days. In each case there is a stay in effect and presumably the issue will be decided by the Supreme Court. A trial is also underway in Michigan to challenge the ban on same-sex marriage.

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Roberts Calls For Increased Funding For Courts, Criticizes Sequester Cuts

Supreme Court Chief Justice John Roberts has already upset many Republicans by voting to uphold the Affordable Care Act. He might lose a few more conservative friends by complaining that the sequester is responsible for cuts to the court system which pose a risk to public safety:

Supreme Court Chief Justice John Roberts used his year-end report for 2013 to call for more funding for federal courts and lambast sequestration’s effect on the judiciary.

In the New Year’s Eve missive, Roberts referenced the seasonally appropriate “A Christmas Carol” by Charles Dickens to guide a “look at what has made our federal court system work in the past, what we are doing in the present to preserve it in an era of fiscal constraint, and what the future holds if the judiciary does not receive the funding it needs.”

Roberts wrote that while the judiciary recognizes the need for frugality, its operating costs are only 0.2 percent of the federal budget and it has been making austerity moves for years, even before the sequester went into effect. Because courts cannot manage their caseload, however, Roberts said the effects of sequestration hit them harder.

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