Womenstake

A Politician By Any Other Name…

by Rachel Pro-Choice Rebouche, Fellow
National Women’s Law Center

“Aspiring Pol Changes Name to Pro-Life” 

Committee Hearing for Controversial Nominee

by Rachel Rebouche, Fellow
National Women's Law Center

Today, the Senate Judiciary Committee will hold a hearing on the controversial nomination of Richard Honaker to the U.S. District Court for Wyoming. We told you about some of the problems with Honaker in a post last week.

Honaker has not only spent his career trying to overturn Roe v. Wade, but he also has shown that he cannot be trusted to apply precedent or fairly interpret law that conflicts with his own personal beliefs. Honaker wrote: “I came to know that if the Bible is true, if Christianity is true, then it is true in family life, it is true in economics, it is true in law, and it is true in all facets of human endeavor.” And for Honaker, Roe and other Supreme Court precedents are unjust and illegitimate because they conflict with what Honaker knows is “true.” He has stated that “abortion is the killing of an innocent, living human being, and it’s wrong, and no one should have the right to do what is wrong….”

Honaker’s absolute beliefs about what is “right” and “wrong” have played out in his work as a public official. As a member of the Wyoming House of Representatives, Honaker wrote two bills, both called the Human Life Protection Act, that would have almost completely banned abortion without creating any exception for when a woman’s health was in danger. Even victims of rape or incest would have been denied abortions unless they reported the incidents to the authorities within five days. Honaker introduced this legislation knowing full well that it directly contradicted Roe v. Wade, stating the legislation was a “direct challenge to Roe.”

How can we trust that Honaker would apply the law – law that he believes to be wrong – as interpreted by the Supreme Court and the appellate courts? As one of three judges on the only district court in Wyoming, he would be required to apply precedent as it stands. His decisions could irrevocably affect the lives of individual litigants, and if his decisions were not appealed, they could have an impact on every woman in Wyoming. 

Women in Wyoming deserve to have their legal rights vindicated based on the Constitution, and not based on what Richard Honaker believes. For more information on how you can help stop this nominee, visit http://action.nwlc.org/opposehonaker and tell the Senate Judiciary Committee to vote “no” on Honaker.

Senate Shouldn't Bow to White House Pressure

by Rachel Rebouche, Fellow
National Women’s Law Center

This morning, President Bush hosted an event at the White House with pending nominees, including judicial nominees. His message was that the Senate has failed in its job to confirm these nominees.

But the Senate’s job is not just to “confirm” President Bush’s nominees. The Senate’s constitutional role is to “advise and consent” to a nomination. And in this should mean a careful evaluation of the records of all nominees to ensure that they are qualified, especially for judicial nominees who will serve lifetime appointments.

The fitness of judicial nominees to serve lifetime terms on our federal courts is an issue of paramount importance to all Americans. Federal judges rule on constitutional protections, individual rights, and longstanding legislative safeguards that protect basic rights. For women, these rulings make a real difference in their every day lives, whether it is their right to equal pay, to safety in schools, or to protect their health under Roe v. Wade.

With fundamental legal protections on the line, all judicial nominees must be thoroughly vetted to ensure they are committed to upholding core constitutional principles.

This scrutiny is all the more important because so many of President Bush’s judicial nominees, including his Supreme Court nominees, have been hostile to women’s fundamental rights. One such recent nominee is Richard H. Honaker, who next Tuesday will receive a hearing to be a U.S. District Court judge for Wyoming. While a member of the Wyoming legislature, Honaker drafted and led the effort to pass legislation that he knew would ban almost all abortions in direct conflict with Roe v. Wade. Further, Honaker has characterized Roe v. Wade as illegitimate because it conflicts with “a higher law – the higher law of God.”

With nominees like Honaker and with rights for all Americans at stake, and for women in particular, the Senate must remain vigilant in carrying out its duty to advise and consent.

Fifth Circuit Deals Another Blow to 1983 Claims

Rachel Rebouche, Law Fellow
National Women’s Law Center

Laurene Cuvillier is a Georgia mother who, between 1994 and 2002, tried to collect past due child support through the Mississippi Department of Human Services (MDHS). Although she made repeated inquiries regarding her child support claims, MDHS failed to pursue them. Unexpectedly, the father of her children died, leaving no provision for the payment of the child support he owed. Cuvillier, representing herself, sued MDHS under section 1983 (the law allowing people to sue for violations of federal rights) for failing to meet its obligations to enforce child support orders under the federal Social Security Act. The Social Security Act requires states to set time limits for collection and standards for enforcement of child support orders.

The Fifth Circuit panel -- Judge Lockhart, a Reagan nominee; Judge Barksdale, a Bush I nominee; and Judge Garza, a Bush I nominee -- denied Cuvillier relief on grounds that may have a big impact on mothers seeking their child support payments. It seems that it is not enough that the state was ineffective in fulfilling its obligations, or even that the state agency failed to do anything at all. Relying on Supreme Court cases and on the cases from other courts of appeals, the Fifth Circuit held that the applicable provisions of the Social Security Act and its regulations do not give individuals a right that can be enforced in court.  (Cuvillier v. Sullivan).

The Fifth Circuit went out of its way to decide that there was no cause of action for Cuvillier because the lower court denied relief on entirely different grounds. Women and their children depend on state agencies to provide benefits to which they are entitled, and courts are a crucial part of ensuring that agencies do their jobs effectively.  Although the court didn’t close off all possibilities that an individual could bring a 1983 claim under the Act, the court noted that its decision is in step with an approach that is “increasingly restrictive” in which “very few statutes are held to confer rights enforceable under § 1983.”  Cases like Cuvillier signal just how important judges can be in determining whether women will have access to the federal courts vital to protecting their rights.

Senate Vote on Southwick Doesn’t Add Up

Rachel Rebouche, Law Fellow
National Women’s Law Center

Today, the Senate confirmed Judge Southwick to the Fifth Circuit Court of Appeals on a 59-38 vote.  We thought Judge Southwick’s record made him a bad choice for this judicial seat, as did over forty other organizations.

Judge Southwick now becomes the fifth judge appointed by George W. to sit on the Fifth Circuit.  (following the confirmations of Judges Clement, Owen, Prado, and, most recently, Judge Elrod).  These candidates haven’t been without their own controversy.  Judge Owen, for example, refused to follow the law in protecting women’s reproductive rights and had a poor record on other civil rights issues, as a Texas state court judge.

And Judge Southwick was President Bush’s third controversial attempt to fill this particular seat on the Fifth Circuit.  President Bush first nominated Charles Pickering, who the Senate rejected twice because of his appalling record on racial justice:  Pickering, as a federal district judge, pressured federal prosecutors to drop a charge against a convicted cross-burner.  Bush’s second attempt to fill the seat was Michael Wallace, an attorney who received a unanimous rating of “Not Qualified” by the American Bar Association.

As Senator Durbin highlighted during Wednesday morning’s floor debate on Southwick, the Fifth Circuit has the highest minority population of all the circuit courts.  Judges in the Fifth Circuit often make decisions that have a tremendous impact on women and minorities.  Three tries to put a fifth conservative judge on a court that has the highest minority population in the country, just doesn’t add up.

Senate Should Reject Judge Southwick’s Nomination

Rachel Rebouche, Law Fellow
National Women’s Law Center

As early as today, the Senate may vote on whether Judge Leslie Southwick should sit on the U.S. Court of Appeals for the Fifth Circuit.

Judge Southwick already has a bad track record from his time on the Mississippi State Court of Appeals. 

While on that court, he wrote or joined extremely troubling opinions pertaining to race discrimination at work, to discrimination on the basis of sexual orientation in the context of child custody, and to discrimination in jury selection. In one case, he joined an opinion reinstating an employee who was fired after calling a colleague a “good ole n*****”. In another, he joined a concurrence that argued that losing custody of a child was the “consequence” of a mother’s “choice” to be in a same sex relationship.  Moreover, his record on employment law, consumer rights, and workers’ rights shows that he is more likely to find in favor of big business than injured plaintiffs. 

Judge Southwick’s record raises serious questions no person appointed to such an important lifetime position should have as to whether he would fairly decide civil rights claims of importance to minorities and women. We can’t afford to have a judge like Judge Southwick on the Fifth Circuit. Take action and urge the Senate to reject Judge Southwick’s nomination.

Further Questions for Judge Mukasey

by Rachel Rebouche, Fellow
National Women’s Law Center

Attorney General nominee Judge Michael Mukasey’s confirmation hearing before the Senate Judiciary Committee yesterday focused almost entirely on national security and the independence of the Department of Justice from the President. But the spotlight shone briefly on another legal issue with a particular impact on women. Senator Feinstein asked Judge Mukasey about a problematic sex discrimination case that Judge Mukasey heard while he was on the bench. The case (Sorlucco v. NYPD) concerns a NYPD officer who sued the Department that disciplined and fired her after she reported being raped by a fellow officer (see the full description of the horrific facts). The Court of Appeals twice reversed Judge Mukasey after he held that there was no evidence of sex discrimination by the NYPD.

Judge Mukasey told Senator Feinstein that no reasonable person could find that the NYPD acted unlawfully. But the Second Circuit Court of Appeals had no problem doing exactly that. So Judge Mukasey’s answer was incorrect –- and doesn’t get us any closer either to understanding why he decided this case the way he did as a judge, or whether the Justice Department, under his direction, would prosecute discrimination claims so as to protect discrimination victims, not hang them out to dry.

The Justice Department is in need of dramatic reform, and one urgent priority is to enforce federal civil rights and antidiscrimination laws. Unfortunately, Judge Mukasey wasn’t asked anywhere near enough about these issues in the past two days of his hearing. The Senate Committee needs to hear much more about these issues.

What to Ask Judge Mukasey

Rachel Rebouche, Law Fellow
National Women’s Law Center

This Wednesday, the Senate Judiciary Committee will hold a hearing on the nomination of former U.S. District Court Judge Michael Mukasey to replace Alberto Gonzales as Attorney General. When asking questions of the nominee, the Committee should keep women in mind.

As the nation’s chief law enforcement officer, Judge Mukasey would have a number of responsibilities that have particular importance to and impact on women. For example, he would be responsible for representing the federal government in court and determining whether the Department would urge the Supreme Court to reverse or narrow critical precedents. The constitutional right to privacy and Roe v. Wade are under increasing attack, and we need an Attorney General that will not attack this vital protection for women.

In the same way, Judge Mukasey, if confirmed, would be responsible for enforcing current laws that help women, such as the Freedom of Access to Clinic Entrances (FACE) Act and the Violence Against Women Act (VAWA). FACE makes it a federal crime to use, threaten or attempt force to injure, intimidate, obstruct or interfere with providers of reproductive health care services or their patients. VAWA provides federal funding to local law enforcement, domestic violence shelters, and advocacy coalitions and service providers. The Senate needs to make sure that Judge Mukasey will use the Department of Justice’s resources to enforce these important laws.

The Department of Justice is also charged with enforcing federal antidiscrimination laws, but over the past six and a half years, the number of cases brought to eliminate discrimination in the workplace, in education and in housing has declined dramatically. It is essential that Judge Mukasey commit to rebuilding the reputation of the Department as a champion of fair play and equal opportunity in these areas.

Women lose out when the Department of Justice fails to take its duty to enforce hard-won civil rights seriously. There’s a lot we don’t know about Judge Mukasey. The Senate Judiciary Committee needs to make sure that our next Attorney General will set the Department on its proper course.

ETA: See Further Questions for Judge Mukasey.

Third Circuit Denies Parents’ Challenge to Emergency Contraception

By Rachel Rebouche, Law Fellow
National Women's Law Center

Melissa Anspach, age 16, walked into a family planning clinic a few days after having unprotected sex. She first asked for a pregnancy test, which was not available at that particular time, and on the advice of a friend, returned that same day to ask for emergency contraception (or the “the morning after pill”), which the clinic provided her. When her parents learned about the EC, they sued the clinic and the City of Philadelphia, which operated the clinic, arguing that they had a constitutional right to know when their daughter asked for and received emergency contraception. Anspach v City of Philadelphia (2007).

The Anspachs claimed that their right to provide parental guidance and their (and Melissa’s) right to religious expression were violated because the clinic did not encourage Melissa to call her parents or ask if her parents knew that she was about to take EC. All of the judges on the U.S. Court of Appeals for the Third Circuit who heard her case, two Clinton appointees and one Reagan appointee, rejected their claims.

Melissa had every right to ask for EC, which she did without coercion and knowing full well the purpose of taking EC — to prevent pregnancy. The court held that the state has no duty to encourage a minor to inform her parents when she is exercising her own rights to access reproductive health care, particularly when it is clear, as it was in this case, that the minor is acting of her own volition. To hold otherwise would be to infringe upon a minor’s right to privacy.

The Third Circuit did the right thing. The court agreed with courts around the country: parents do not have a constitutional right to know when their daughters make their own contraception choices.

Getting “Informed Consent” Right

By Rachel Rebouche, Law Fellow
National Women's Law Center

The Supreme Court of New Jersey recently rejected the claim that doctors must deliver ideological, non-medical speeches to women considering an abortion in Acuna v. Turkish.  Ms. Acuna brought medical malpractice and wrongful death claims after receiving an abortion, alleging that her doctor should have informed her that the fetus she carried was a “complete, separate, unique and irreplaceable human being.”

In dismissing Acuna’s informed consent claim, the New Jersey Supreme Court held that there is no consensus in the medical community or in society generally that an embryo is a person.  To require doctors to say that it is would infringe upon a woman’s right to self determination and a physician’s right to free speech.  The court refused to impose duties on doctors that are not based on medical facts, but rather on the value-laden viewpoint of political and religious groups.

This case is one of a series of attempts to turn “informed consent” into a platform for divisive and fundamentalist views on women’s reproductive choices.  In the last few years, South Dakota passed a law forcing doctors to describe the fetus as a human being, which the U.S. Court of Appeals for the Eighth Circuit fortunately found to be unconstitutional ; a bill was introduced in Congress that would require doctors to recite a statement about a fetus feeling pain, even though there is no conclusive evidence that this is true; and South Carolina attempted to require doctors to show women ultrasound images while explaining the implications of an abortion.The New Jersey Supreme Court understands that women’s health is best protected when doctors are able to give accurate and unbiased information to their patients, and when the law does not presuppose that women need to be talked out of their choices.  Hopefully, the courts will continue to recognize that doctors have a duty to protect women’s health; not to further the moral agenda of the anti-choice lobby.