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Oral Arguments for Hobby Lobby Heard by the 10th Circuit Court of Appeals

Posted by Charlotte Cassel, Intern | Posted on: May 24, 2013 at 02:50 pm

Yesterday, the U.S. 10th Circuit Court of Appeals heard oral arguments in the case of Hobby Lobby's challenge to the Affordable Care Act's birth control benefit. The case was heard by all the active judges on the 10th Circuit, as opposed to a typical panel of three. At the heart of this case is whether Hobby Lobby, a for-profit company, can be required to cover contraception for its over 13,000 employees. Hobby Lobby's owners contend that some forms of contraception, including the "morning-after-pill," are in violation of their religious beliefs, because they may cause abortions. This is medically inaccurate.

The main focus for the judges was whether Hobby Lobby, as a for-profit corporation, has a constitutionally protected right to religious freedom. Chief Judge Briscoe asked the lawyer for Hobby Lobby, "Do you have any authority that a for-profit corporation can exercise religion? How does that work?" Perhaps the Chief Judge was skeptical after the District Court held that "[g]eneral business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Religious exercise is, by its nature, one of those 'purely personal' matters…which is not the province of a general business corporation."

Nonetheless, relying on the federal Religious Freedom Restoration Act ("RFRA"), Hobby Lobby's attorney sought to establish that the birth control benefit would impose a substantial burden on the corporation and its owners.

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Report on the "Crack Baby" Myth Serves as Reminder of the Risks of Prosecuting Pregnant Women

Posted by Kelli Garcia, Senior Counsel | Posted on: May 24, 2013 at 01:45 pm

The "crack baby" scare of the 1980s helped fuel a movement by prosecutors across the country to charge women who used drugs while pregnant or whose newborns tested positive for drugs with child abuse, neglect and even manslaughter [PDF]. But what really happened to those babies who were supposed to "overwhelm every social service delivery system that they come in contact with for the rest of their lives," according to one newscaster at the time? Were they, in the words of columnist Charles Krauthammer, doomed to "a life of certain suffering, of probably deviance, or permanent inferiority"? In a word — no. A recent New York Times "Retro Report" video revisited the crack baby hysteria and found no evidence that these dire predictions came true. These findings, which were being reported as early as 1992, should remind prosecutors and judges that the causal link between drug use and a specific pregnancy outcome is speculative, at best. While no one condones drug use in pregnancy, punitive measures do nothing to improve maternal, fetal, or child health [PDF]. Instead, they discourage women from seeking prenatal care and drug-treatment for fear of being prosecuted. 

The Mississippi state Supreme Court recently heard the case of Nina Buckhalter who tested positive for methamphetamine after suffering a stillbirth and was charged with manslaughter. The prosecutor in the case claims the drugs caused the stillbirth even though the actual cause is unknown and there is no clear evidence that methamphetamine use can cause a stillbirth.

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Proving the Obvious: Access to Birth Control and Sex Ed Leads to Lower Teen Birth Rates

Posted by Sharon Levin, Director of Federal Reproductive Health Policy | Posted on: May 24, 2013 at 12:55 pm

This week, the CDC announced a historic drop in the rate of teen births. This is great news, and on Time's website, Amanda Sifferlin discusses what is behind the change. She attributes it to "a mix of greater access to birth control and better sex education." 

Sifferlin is right that better sex education has become available, and this is because of an important shift in policy by the Obama Administration. One of the new Administration's first acts was to stop funding the ineffective and often dangerously inaccurate "abstinence until marriage" programs that had been in place during the Bush years. Instead, the new administration focused on funding medically accurate and more comprehensive sex education. In a report SIECUS issued this week, they state that the impact of this policy shift can be seen "on the ground" and that real progress is being made. 

Thus, it is no coincidence that the CDC found a drop in teen pregnancy in the years 2007 - 2011. That time period roughly coincides with President Obama's first term and the new emphasis on comprehensive sex education. 

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President Obama Makes Historic Nominations

Posted by Amy K. Matsui, Senior Counsel and Director of Women and the Courts | Posted on: May 24, 2013 at 10:10 am

Yesterday, Srikanth Srinivasan became the first South Asian judge confirmed to a federal court of appeals. In addition, President Obama has recently made some groundbreaking nominations. Last week, after Shelly Dick was the first woman confirmed to the Middle District of Louisiana, President Obama nominated Carolyn McHugh, who would be the first woman from Utah to sit on the Tenth Circuit Court of Appeals, Elizabeth Wolford, who would be the first woman to sit on the Western District of New York, Pamela Reeves, who would be the first women to sit on the Eastern District of Tennessee, and Debra Brown, nominated to the Northern District of Mississippi, who would be the first African-American woman to serve as a federal judge in Mississippi. Yesterday as well, President Obama nominated Landya B. McCafferty, who if confirmed would be the first woman judge on the U.S. District Court in New Hampshire, and Susan P. Watters, who if confirmed would be the first woman judge on the U.S. District Court in Montana. 

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Continuing to Level the Playing Field: NWLC Files Amicus Brief in Ollier v. Sweetwater

Posted by Valarie Hogan, Fellow | Posted on: May 23, 2013 at 02:00 pm

A League of Their Own
Source: IMDb

There may be no crying in baseball, but the lack of athletic opportunities available to girls in secondary schools across the country is definitely something you should be upset about. Just yesterday, the National Women's Law Center filed an amicus brief with the Ninth Circuit in Ollier v. Sweetwater, a case brought by high school girls challenging their school's failure to provide them with equal athletic opportunities and the retaliation they faced after lodging a complaint. The brief supports the district court's ruling that the school failed to meet any part of Title IX's three-part participation test and that it retaliated against the class of girls when it fired their coach among other actions. The school district appealed the decision to the Ninth Circuit. 

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Hobby Lobby Tries Again to Take Women's Decisions on Birth Control Away from Them

Posted by Shari Inniss-Grant, Fellow | Posted on: May 23, 2013 at 11:05 am

Today, Hobby Lobby will try to explain to all the judges on the 10th Circuit Court of Appeals why employees of a craft store chain should be denied full insurance coverage of birth control at their bosses' discretion. Hobby Lobby is the largest of the 31 for-profit companies attempting to challenge the federal birth control benefit, with over 13,000 employees who will be affected by what the judges decide. 

This is Hobby Lobby's fourth try at getting a court to accept its argument that the religious beliefs of a for-profit company should overrule women's health and that it should not have to cover some forms of birth control. The district court that first denied Hobby Lobby's request to get out of providing the full birth control benefit said that any burden on its owners' religious beliefs was too "indirect and attenuated" to meet the legal standard

"[T]he particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else's participation in an activity that is condemned by plaintiff[s'] religion." 

The 10th Circuit said "We agree" when it denied Hobby Lobby's request to temporarily get out of providing the benefit.

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Unsecure Employment: House Committee Votes to Keep Workers in the Dark about Pay Disparities

Posted by Valarie Hogan, Fellow | Posted on: May 23, 2013 at 10:10 am

HHSThere are many things that the Department of Homeland Security ("DHS") does to protect Americans: DHS' mission includes everything from preventing terrorism and enhancing security to managing our borders and ensuring disaster resilience. However, DHS does NOT currently protect the Americans employed by its contractors and subcontractors from retaliation for discussing wages with coworkers. 

Yesterday, Representative Rosa DeLauro introduced an amendment to the Department of Homeland Security Appropriations Act that would bar contractors and subcontractors doing business with DHS from retaliating against employees who discuss their wages. Seems reasonable, right? Punitive pay secrecy policies allow employers to maintain discriminatory practices and the threat of retaliation makes employees feel powerless. Who would object to non-discrimination and anti-retaliation provisions, you may ask? 

Twenty-six members of the House Committee on Appropriations. 

Rather than supporting the rights of employees to seek out pay disparities and combat wage discrimination, the committee passed a substitute amendment that substituted all of the substance of the DeLauro amendment with hot air. 

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West Virginia Crisis Pregnancy Center Locates Next to Abortion Provider

Posted by Kelli Garcia, Senior Counsel | Posted on: May 22, 2013 at 10:15 am

The Women's Health Center of West Virginia, a full service health clinic and abortion provider just got a new neighbor, the Women's Choice Pregnancy Resource Center. Women's Choice isn't a health clinic and it doesn't provide medical services. Instead, it offers counseling to try to persuade women not to have an abortion and provides free pregnancy tests, some diapers and some baby clothes. But, would you know the difference just from the names? Imagine how easy it would be for a woman looking for Women's Health Center to walk into Women's Choice instead, thinking, perhaps, that it is an affiliated clinic offering pregnancy and abortion care. It is called Women's Choice, after all, suggesting that it supports choice rather than an ideological anti-abortion agenda. In fact, it used to be called Lifeline of Charleston but changed its name in 2002. Referring to the name change, Sharon Lewis, the executive director of Women's Health Center, noted,  "[M]y only conclusion is that that's part of a deceptive practice to get women in there because they're confused, thinking that they're going to a reproductive-health center." 

These tactics — locating near an abortion provider, using a misleading name — are all common ways in which Crisis Pregnancy Centers (CPCs) try to get women into their doors. Unfortunately, deceptive practices by CPCs are fairly common and they don't stop with advertising and location.

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