Constitutional Interpretation and Change

by Jeremy Leaming

In a bleak era of state and federal lawmakers striving to dictate to women on health care concerns, primarily centering on birth control, a federal court today offered a respite. It ruled that the federal government must stop making it difficult for young women to get access to emergency contraception.

U.S. District Court Judge Edward Korman found that the FDA’s refusal to remove restrictions on the availability of Plan B, a medication to help prevent pregnancy, was “arbitrary, capricious, and unreasonable.”

The Atlantic’s James Hamblin notes that “leaders in the FDA have advocated” the availability of the drug for some time now. “In 2011, FDA commissioner Dr. Margaret Hamburg concluded that it was safe to sell Plan B One-Step over the counter. The American Medical Association, Americans Congress of Obstetricians and Gynecologists, and American Academy of Pediatrics have since endorsed unrestricted access to emergency contraception.”

But, in a move reminiscent of the George W. Bush administration’s disdain for science, Health and Human Services Secretary Kathleen Sebelius last year ignored the FDA’s recommendation and held that young women could not get access to Plan B without a prescription.

Judge Korman blasted Sebelius’ decision as revealing “a strong showing of bad faith and improper political influence,” TPM’s Sahil Kapur reports.

President of NARAL Pro-Choice American Ilyse Hogue lauded Korman’s decision, saying it is an “affirmation that policy can and should be driven by facts and by public health. For years, women have had to jump through hoops because officials in Washington played politics with our health. Today’s ruling brings us one step closer to putting women in control of our destinies.”

It’s also a court ruling that will undoubtedly be attacked by the rabid and righteous groups bent on controlling certain health care decisions that should be left solely to women.

by Holning Lau, Associate Professor of Law, University of North Carolina School of Law

In my home state of North Carolina -- the most recent and probably last state to amend its constitution to ban same-sex marriage -- I have been fielding lots of questions from local couples wondering what impact, if any, the Supreme Court’s pending marriage cases will have here. The cases arose in California and New York. How might litigation that started so far away change things in our neck of the woods?

The cases before the Supreme Court -- Hollingsworth v. Perry and United States v. Windsor -- are unlikely to have any immediate legal impact on same-sex couples in places like North Carolina. With that said, the cases can accelerate change in our part of the country, and they have already given us a lot to celebrate. In this post, I will use North Carolina as an example to elaborate on these points, but my underlying analysis can be applied to any one of the many states that currently, like North Carolina, offer no legal recognition to same-sex relationships.

Immediate legal impact

Let’s start with why the two cases probably won’t directly or immediately affect legal rights in North Carolina. Hollingsworth is the case about Prop 8, the ballot measure banning same-sex marriage in California. The case concerns whether a state can deny same-sex couples the right to marry. The Court could take Hollingsworth as an opportunity to declare that no state, including North Carolina, is permitted to deprive same-sex couples of that right. Indeed, I helped to prepare an amicus brief that supports that conclusion and I certainly welcome it. Conventional wisdom, however, is that the Court won’t make such a bold move. Some supporters of marriage equality counsel against a bold move, fearing the backlash that it would foment.

Based on last week’s oral arguments, I suspect most of the justices are struggling to choose between dismissing the case on procedural grounds and striking down Prop 8 in a way that minimizes spillover effects to other states. I doubt that a majority of the justices will vote to uphold Prop 8.

Dismissing the case on procedural grounds (discussed more fully here) would allow the Court to avoid having to either strike down or uphold Prop 8. It would simply be saying that, for technical reasons, the case is not properly before the Supreme Court. If the Court adopts this reasoning, Prop 8 would be unconstitutional because the California couples prevailed in lower court. However, because the Supreme Court itself would not be saying anything about same-sex marriage, states beyond California would remain unaffected.