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Winning by Losing: Chief Justice Roberts’s Strategy to Eviscerate Reproductive Rights and Justice

By Maya Manian*

In June Medical Services v. Russo, the U.S. Supreme Court struck down a Louisiana law that would have shuttered all but one abortion clinic in the state. Unfortunately, that decision came at a steep cost: Chief Justice Roberts wrote a separate opinion in June Medical weakening the legal standard for protecting abortion access and setting forth a road map for how states can attack abortion rights going forward. Furthermore, in Little Sisters of the Poor v. Pennsylvania, Roberts joined the Court’s four other conservatives in upholding the Trump Administration’s excessively broad exemptions to the ACA’s contraceptive coverage requirement.

Together, June Medical and Little Sisters of the Poor represent the dawning of an unprecedented attack on reproductive rights and justice. Chief Justice Roberts put forward a clear path to eviscerate abortion rights and to permit attacks on access to contraception without overtly overturning precedent, rendering reproductive health care available in theory but inaccessible in reality for low-income people and people of color.

June Medical Services v. Russo: Upholding While Undermining Precedent

In a striking parallel to the initial constitutional challenge to the Affordable Care Act (ACA), Roberts’s separate opinion in June Medical appears to adopt a strategy of winning by losing. Roberts voted with the liberal bloc to protect the legitimacy of the Supreme Court while still advancing a doctrinal agenda that will dismantle reproductive rights. The 5–4 decision in June Medical invalidated a Louisiana law requiring abortion providers to obtain admitting privileges at local hospitals. Four years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down an almost identical Texas law because the Court recognized that admitting privileges laws serve no health benefits yet impose substantial obstacles to accessing abortion care. Even though he dissented in Whole Woman’s Health, Chief Justice Roberts joined the four liberal Justices in June Medical to overturn Louisiana’s medically unnecessary admitting privileges mandate.

Roberts’s separate opinion concurring in the judgment made clear that he continued to disagree with the majority opinion in Whole Woman’s Health. In that case, Justice Kennedy provided the fifth vote to bolster Planned Parenthood v. Casey’s undue burden standard. Whole Woman’s Health held that courts must balance the actual benefits of an abortion restriction against its burdens in order to determine whether the law imposes a burden that is undue.

Roberts rejected Whole Woman’s Health’s balancing test for protecting abortion rights. Instead, he would ask only whether the burdens imposed by an abortion regulation amount to a substantial obstacle to accessing abortion care. The Chief Justice drops any requirement that courts compare the proven benefits of an abortion law with its burdens. Ironically, Roberts asserted that the principle of stare decisis compelled him to adhere to Whole Woman’s Health’s holding with regard to admitting privileges laws, while at the same time he undermined the legal standard set forth by that very precedent. As Justice Kavanaugh pointed out in his separate dissent, “[t]oday, five Members of the Court reject the Whole Woman’s Health cost-benefit standard.”

As the new swing vote on abortion cases, Roberts’s opinion indicates that going forward the Supreme Court will likely uphold all kinds of onerous abortion restrictions. As legal historian Mary Ziegler documents, over the last several decades, anti-abortion forces have chipped away at access to abortion care through a wide variety of incrementalist measures, including laws imposing targeted regulation of abortion providers (“TRAP” laws) and through violence directed at providers and clinics. Currently, six states have only one abortion provider left and low-income women cannot obtain health care coverage for abortion care in most of the country due to the Hyde Amendment. Under Roberts’s watered down interpretation of the undue burden test, federal courts could uphold numerous burdensome regulations.

In fact, shortly after deciding June Medical, the Supreme Court ordered the Court of Appeals for the Seventh Circuit to reconsider two abortion rights victories in light of the diminished legal standard announced by Roberts. The federal appellate court had struck down Indiana laws requiring an eighteen hour waiting period after a government mandated ultrasound and forcing teenagers to notify parents of their decision to seek abortion care after they receive an order from a court bypassing parental involvement. Those victories for abortion rights now appear to be in jeopardy. Other restrictions such as limits on medication abortion and bans on telehealth for abortion care—especially important means of access during the coronavirus pandemic—could also be upheld. As David Cohen and Carole Joffe poignantly document, abortion patients already face an obstacle course when seeking care. Roberts’s weakened legal standard for abortion rights paves the way for states to impose so many obstacles that only the affluent will be able to readily access the full spectrum of reproductive health care—replicating conditions that existed prior to Roe v. Wade.

Little Sisters of the Poor v. Pennsylvania: Eviscerating Access to Contraception

In addition to issuing a weaker standard for reviewing abortion restrictions, the Supreme Court allowed the Trump Administration to undermine access to contraception. In Little Sisters of the Poor v. Pennsylvania, the Court decided that the Trump Administration could gut the Affordable Care Act’s (ACA) requirement that health insurance plans cover women’s essential preventive services, which includes contraceptive care. 

Little Sisters of the Poor is the culmination of decade-long litigation over the ACA’s promise of equitable access to essential health care for all Americans. Congress passed the Women’s Health Amendment as part of the ACA to decrease the disparity in health care costs experienced by women.

At its core, the Women’s Health Amendment is an anti-discrimination law. In other words, Congress intended to ensure women have the same health insurance coverage for their essential health care as men. As part of this mandate for equality, all FDA-approved prescription contraceptives must be covered without a copay in ACA-compliant health insurance plans.

Contrary to conservative claims, the coverage requirement is not about forcing nuns to pay for contraception. In fact, Obama-era rules ensured that religious organizations could claim an exemption from birth control coverage, while providing for an alternative mechanism for women to access contraceptives. The Obama Administration offered an accommodation to religious non-profits by creating an opt-out process. Religiously motivated organizations could file a one-page opt-out form, and the government would then ensure birth control coverage through other means. Yet, organizations like the Little Sisters of the Poor objected to the mere filing of a one-page form as too burdensome. Businesses and universities also challenged the ACA’s equal coverage mandate by seeking a complete exemption from coverage for employees and students.

In 2017, the Department of Health and Human Services issued two new regulations allowing almost any employer, including large corporations and colleges, to refuse to include contraceptives in their health insurance plans based on religious or even “moral” objections. Strikingly, the Trump Administration’s regulations contain no alternative mechanism to ensure women’s access to birth control coverage. Those regulations had been enjoined by a lower federal court, but the Supreme Court decision in Little Sisters of the Poor allows the Trump rule to go into effect—leaving tens of thousands of women without insurance coverage for contraception.

The Court held that the executive branch has the statutory authority to carve out contraception from the ACA’s equitable health care coverage mandate. The majority opinion—in which Roberts joined his fellow conservative Justices—did not directly address claims about religious freedom. Instead, the majority focused on technical issues of statutory interpretation and administrative procedure to conclude that the Trump Administration could issue extremely broad exemptions to contraception coverage despite effectively undoing women’s equal access to preventive care.

In yet another example of the Supreme Court favoring conservative religious claims over the right to equality under the law, Justice Alito wrote a separate opinion directly addressing assertions that religious freedom not only permits but in fact requires broad exceptions to the contraceptive coverage mandate. In an opinion joined by Justice Gorsuch, Alito asserted that the Religious Freedom Restoration Act mandates exemptions like those issued by the Trump Administration. Justice Alito relied heavily on a prior decision, Burwell v. Hobby Lobby Stores, in which five Republican-appointed Justices held that corporations are entitled to accommodations against the contraceptive coverage requirement. Notably, Justice Alito’s Little Sisters of the Poor opinion exclaims:

“The Court has held that there is a constitutional right to purchase and use contraceptives . . . [b]ut the Court has never held that there is a constitutional right to free contraceptives.”

Justice Alito’s statement ignores the constitutional right to equality—and that the crux of the Women’s Health Amendment ensures that women have equal access to essential health care. Furthermore, Alito’s statement elides that insurance coverage for contraception is not “free” but earned by women as part of their compensation for employment.

Notably, Chief Justice Roberts did not join Alito’s more radical opinion. Instead, Roberts’s strategy relied on more technical arguments to allow the Trump Administration to hollow out the ACA’s equity mandate. In both the June Medical and Little Sisters of the Poor decisions, Roberts’s approach lays down a path for opponents of reproductive justice to slowly eviscerate access to abortion and contraception.

Although news reports indicate that the decision was 7–2, the opinions behind those numbers tell a more complicated story. Justice Kagan wrote an opinion, joined by Justice Breyer, concurring in the judgment, emphasizing that she agreed only with the result but not the reasoning of the five conservative Justices. Kagan felt the statutory text compelled her to concede that the Trump Administration possessed the authority to issue exemptions to coverage of contraception.

Nevertheless, Justice Kagan’s opinion offered an alternative legal route to challenge the Trump Administration’s attack on contraceptive coverage. She noted that the lower federal court had not reached a decision on an additional legal ground for striking down the broad exemptions granted by the Trump Administration—namely, that the exemptions are “arbitrary and capricious.” The Administrative Procedure Act’s arbitrary and capricious standard demands that administrative decisions reflect reasoned decision-making and draw a rational connection between the problem identified and the chosen solution. Justice Kagan set forth a clearly-reasoned argument for why the Trump Administration’s unduly broad contraceptive carve-out could contravene the arbitrary and capricious legal standard. Thus, challengers could attempt to block implementation of Trump’s attack on birth control in the lower federal court based on Justice Kagan’s opinion.

Justice Ginsburg wrote a dissenting opinion, joined by Justice Sotomayor, articulating the devastating harms imposed by the Trump Administration’s far-reaching contraceptive coverage exemptions. The government’s own estimates showed that, at a minimum, between 70,500 to 126,400 women would lose birth control coverage under the Trump exemptions. Ginsburg emphasized that ready access to contraception both “safeguards women’s health and enables women to chart their own life’s course.” Furthermore, Ginsburg noted that the ACA has helped women in lower-income groups access health care more broadly and preventive services in particular. The Trump Administration’s exemptions impose significant burdens on those women, since they will now either struggle to find coverage for contraception elsewhere or be forced to pay out of pocket. The most effective methods of contraception are also the most expensive, and limiting health insurance coverage of these contraceptives disproportionately burdens poor women and women of color.

The Unequal Impacts of the Supreme Court’s Assault on Reproductive Rights  

The ACA’s mandate for equity in health care through contraceptive coverage rests on medical experts’ conclusion that birth control is essential preventive care. Evidence (and common sense) tells us that supporting and expanding access to contraception reduces the rate of unintended pregnancy, which reduces the rate of abortion. Yet, not only did the Supreme Court undermine access to contraception, Chief Justice Roberts also cleared a path for restrictions on abortion care. By restricting access to both contraception and abortion, the Court has exposed what really animates these heated debates—a contest over who controls women’s decisions about sexuality and gender roles in a secular society.

Anti-abortion advocates lost the battle against abortion rights this time, but Chief Justice Roberts set forth a strategy for winning the war against reproductive rights. The Supreme Court’s dismantling of reproductive rights will not impact all people equally. As Seema Mohapatra explains, low-income people and people of color will disproportionately suffer as the Roberts Court rolls back strides towards reproductive justice.

 

*Maya Manian (J.D.) is a Visiting Professor at American University Washington College of Law.

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HLPR Student Note Competition Open

**The deadline for submissions has been extended to Friday, August 21**

The Harvard Law & Policy Review’s Winter 2020 Student Note Competition is now open. The competition provides a unique opportunity for law students to publish their work in HLPR, which has had a recent distribution to more than 6,000 lawyers nationwide, as well as congressional offices, judges, and other progressive decision-makers. We seek policy-oriented pieces that are 4,000–13,000 words, shorter in length than a typical journal article. We welcome articles that you may have worked on as part of a law school class or on your own.

Please email your submissions to harvardlprsubmissions@gmail.com—not to the main HLPR email address—or submit through Scholastica to preserve anonymity. For more information, check out the submission rules or the published notes in our archive.

The deadline for student note submission is 11:59 pm ET on Friday, August 21, 2020.

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Scientific and Medical Expertise in the Prosecution of Pregnant Women

By Aziza Ahmed*

Among the many important critiques made by reproductive justice (RJ) advocates, a key claim is that “choice” is a myth for poor women seeking reproductive health services. According to RJ advocates and scholars, a combination of laws and social realities—from welfare restrictions to discrimination in the hospital setting—have made it nearly impossible for poor pregnant women to have autonomy and agency in their health-related decision making. Some scholars have argued that the myth of “choice” reifies the woman’s responsibility for her purportedly bad reproductive decisions.

The idea that the “choice” rhetoric allows for blame is especially relevant to the criminal legal response to pregnancy and childbirth, where we see prosecutors, doctors, and nurses seeking to hold women responsible for their birth outcomes. This use of the criminal law to manage women’s pregnancies is an expected outcome of the expansion of the criminal legal system. Starting in the late 1960s and early 1970s, as the welfare state retracted, perceived social problems were recast as criminal problems. Criminal law encroached into nearly every aspect of social welfare from food assistance to the delivery of health services. For poor women, this often meant that their pregnancies—the types of foods they could afford to eat, as well as their healthcare from pregnancy to birth—took place under the specter of criminal law.

The persistent use of the criminal law to regulate pregnancies raises the need to explore how expertise—from forensic science to medical evidence—is utilized to prosecute women for crimes related to pregnancy. I recently explored the way particular modes of expertise and evidence operate in cases of still birth and abortion with regard to the controversial floating lung test (FLT). The FLT is often used in prosecutions of women for still births or self-induced abortion, and is designed to test whether an infant was born dead (a still birth) or alive. The FLT requires taking pieces of a fetus’ lung and placing it in water. If the pieces of the lung float, the baby had taken at least one breath and is classified as having been “born alive”; if the lungs sink, then the baby was a still birth. If born alive, women are frequently prosecuted for infanticide or homicide.

The FLT came to national attention in the case of Purvi Patel. Patel had ingested an abortifacient that she ordered from Hong Kong after learning she was pregnant. Trial records suggest that she had no idea how pregnant she was and assumed that she was still early in her pregnancy. After delivering the fetus, Patel placed it in a bag and went to the hospital. After examining her, a physician dated her pregnancy at a later stage and called the police, believing the child was still alive. To answer the question of whether or not there was a live birth, forensic scientists turned to the floating lung test. If the child had been born alive, Patel could be—and was—charged with numerous crimes in Indiana, including feticide and neglect of a dependent leading to death. The test, as I describe in detail in a recently published paper, is highly contested and viewed as unreliable by forensic scientists. This is primarily because there are numerous ways lungs can become oxygenated and generate false positives. And yet, even today, courts continue to accept this faulty evidence against women who have had still births. Some of these women, though not all, may have attempted to induce their abortions.

The FLT is not the only example. The supposed “crack baby” epidemic is another instance of the intersection of criminal law, expertise, and reproductive health. Documented in detail by Dorothy Roberts, the myth of the crack baby epidemic had catastrophic consequences for poor Black women. Starting in the 1980s, public officials and the media advanced a narrative of Black women as uncaring mothers who passed drugs to their fetus and resulting child. Hospitals doubled down on reporting drug use to law enforcement and social services, often targeting pregnant women of color in ways that neither addressed their health needs nor ensured better birth outcomes for their children.

Since then, research has found that the impact of crack cocaine on children’s lives was far less pernicious than that of poverty, inspiring a national conversation about the failed carceral response to the purported “crack baby” epidemic. This has spawned a public reckoning for the mainstream media, most notably the New York Times. Yet, despite the public reconsideration of criminal approaches to policing pregnancy and motherhood, Michele Goodwin’s pathbreaking new book, Policing the Womb: Invisible Women and the Criminalization of Motherhood, powerfully shows how little has changed. Goodwin carefully documents the variety of ways in which the criminal law continues to entangle poor women, especially poor women of color, throughout the courses of their pregnancies, whether by regulating their ability to decline surgeries or by prosecuting them for drug use.

The role of scientific expertise and evidence in the “crack baby” epidemic has raised several questions about the social and political environment facilitating the uptake of particular expert claims. Why were the media, courts, and legislatures so willing to accept “small n” studies asserting correlations between crack cocaine and birth outcomes in order to enable the prosecution of pregnant women? Why were courts and the public so willing to accept the narrative of the purported epidemic, when from the outset there were experts who argued that babies born to mothers using crack or cocaine were not experiencing the neurological symptoms and long-term effects that other physicians claimed?

The successful prosecutions of women who have still births, self-induce abortion, or use drugs during pregnancy is significant for another reason. Courts were not only accepting, but legitimating, problematic forensic science or research by allowing it to pass through procedural hoops and make it out the other side. This raises the question of why courts allowed unreliable evidence to survive procedural hurdles in the first place. In the case of the floating lung test, as well as in other forensic tests used in the pregnancy and abortion context, there are a few possibilities that I lay out below (which are discussed at greater length in my paper).

First, rules of evidence and procedure have been poor tools for excluding faulty science in the courts. Many scholars have documented how the flexibility of evidentiary standards allows judges—who may lack the capacity to understand and grapple with scientific questions—to admit forensic science of questionable merit. There is a general sense in the criminal law and procedure literature that such tests have failed defendants by allowing forensic tests riddled with issues to substantiate claims that lead to conviction.

Second, judges are not immune from societal bias or political pressure. As legal scholar Deborah Tuerkheimer has noted in the context of Shaken Baby Syndrome, the desire to blame someone for the death of a child can create its own momentum in courts. As I argue in my work, this momentum also has racial and gender dynamics, which are driven in part by moral panics surrounding pregnancy and mothering. The role of race is abundantly clear in the context of crack cocaine use in pregnancy. Public figures such as President Reagan churned out a narrative about Black mothers exploiting their children to extract payments from the welfare state. The criminalization of pregnancy flowed naturally from this narrative as the war on drugs took hold. Negative ideas about Black motherhood were so powerful, and prosecutions so common, that the research suggesting Black women were hurting their fetuses simply served to confirm an existing story.

Finally, as in the context of the supposed crack baby epidemic, prosecuting women for their still births and self-induced abortions expressed a moral panic about women who had betrayed their motherly instincts. This can be seen in the prosecutor’s painting of Patel as a cold-hearted murderer:

On July 13 the little boy was born on a cold, hard bathroom floor. The only touch he got from his mother was to move him from that bathroom floor into a garbage can. In that garbage can he was lying on and surrounded by waste that no one wanted. From there he went to the bottom of a cold, metal dumpster. He was born and died without being cared about, without experiencing anything good. Not one second of comfort, not one second of warmth. We’re here for a little boy that we can’t call by name because he never got one.[1]

Aside from discounting Patel’s version of events in which she described being in a state of shock after delivering a dead fetus, the prosecution suggests that as a mother she should have instinctively cared for the child she gave birth to. By painting her in this light, the prosecution implied that Patel deserved to be punished for failing to live up to a set of prevailing notions of pregnancy and motherhood. And by accepting these arguments and the outcome of the floating lung test over the protestations of Patel’s defense attorney, the court legitimated both the faulty forensic science and the idea that mothers have not only moral but also legal duties towards their fetuses.

The criminalization of pregnancy and abortion is still rampant. Questioning expert claims that enable these prosecutions, as well as the procedural mechanisms that fail to check questionable and unreliable science, helps to dismantle the regulation of pregnancy and abortion through the criminal law.

 

*Aziza Ahmed is a Professor of Law at Northeastern University.

 

[1] Transcript of Record at A7, State v. Patel, No. 71D08-1307-FA-00017 (St. Joseph Super. Ct. Mar. 30, 2015).

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When Judges Compete on a Lawless Terrain: Possible Futures for Clerkship Hiring

By April Xiaoyi Xu*

“I will always be your judge, and you will always be my clerk.”

—Justice Christina Wong Stinson to Audrey Coyne in David Lat’s novel Supreme Ambitions

Over the years, there have been many efforts to reform the American clerkship selection process. While many support regulating the judicial clerkship selection process, others vehemently oppose it, instead favoring a laissez-faire approach to hiring the nation’s most promising young lawyers-in-the-making.[1]

The latest attempt to regulate the U.S. judicial clerkship selection process, the 2018 pilot Law Clerk Hiring Plan, stipulates the earliest date that judges can begin hiring law clerks. For the Class of 2021, that date was June 15, 2020. In a few weeks, the Ad-Hoc Committee on Law Clerk Hiring will reevaluate the 2018 pilot hiring plan at the end of its two-year duration and decide the future of the judicial clerkship hiring process. As such, it is time to review the pros and cons of regulation and examine potential reforms.

The Pro-Regulation Perspective

Proponents of regulating the law clerk application process highlight several benefits of the latest hiring plan. First, they assert that the plan ensures that judges hire law clerks after they have completed at least two years of law school, allowing law students to have established a fuller academic record and developed a more informed opinion about their legal career plans. This timeline prevents judges from hiring earlier and earlier—a race-to-the-bottom scenario that often leads to judges hiring first-year law students, forcing both the judge and the law clerk-to-be to make plans at least two years into the future.[2]

Second, proponents like Chief Judge Robert Katzmann of the Second Circuit argue that the 2018 hiring plan levels the playing field for first-generation law students and those without legal connections by pushing back the judicial clerkship hiring start date from the end of students’ 1L year to the end of their 2L year.

Third, proponents of the plan believe that it is fairer to applicants because it effectively bans the “exploding offer” scenario, where a judge makes a clerkship offer and waits for the applicant to respond on the spot. Under the 2018 plan, judges are not only required to keep clerkship offers open for at least 48 hours, but they also must allow applicants to interview with other judges during that period.

The Anti-Regulation Perspective

The uniquely independent nature of the judiciary and the amount of discretion accorded to judges both pose considerable challenges to regulating the judicial clerkship selection process. Under the U.S. Constitution, Article III judges enjoy substantial autonomy and lifelong tenure “during good behaviour.” Given this characteristic of the ultimate decision-makers in the law clerk hiring process, critics of regulation argue that any hiring plan is bound to fail because of two critical loopholes: First, it is a voluntary plan that judges must opt into; and second, it is non-binding, without any mechanisms for enforcement. Both of these factors, critics argue, contributed significantly to the failures of past reform efforts, including the failed hiring plans of 1978, 1983, 1989, and 2003.[3]

Critics also argue that by imposing an artificially compressed timeline that begins only after the applicant has completed his or her 2L year, the 2018 plan creates even more pressure for judges to try to hire the most coveted applicants as early as possible. Given a tighter timeframe, some judges may feel compelled to continue to make exploding offers, despite the rules.

Professor Aaron Nielson, a former Supreme Court clerk for Justice Alito, has asserted that “no plan at all” is better than “a plan that doesn’t work.”[4] Nielson believes that imposing a hiring plan that does not work is unfair, because “when a plan is formally in place but is widely ignored, folks learn that only gullible people trust rules.”[5] While students from law schools with robust clerkship cultures may be better informed, their counterparts at other schools may put undue faith in the hiring plan, not realizing that it is falling apart.[6] Moreover, because some, but not all, professors are willing to submit letters of recommendation before the recommended date, the plan “treat[s] similarly-situated students dissimilarly.”[7]

Another fervent advocate for deregulating the judicial clerkship selection process is the outspoken—now-disgraced—former Judge Alex Kozinski,[8] who viewed the judicial clerkship selection process as “a normal, highly competitive market process where the parties bargain with each other on roughly equal footing.”[9]

Like the classic prisoner’s dilemma, coordination in clerkship hiring is difficult and costly when rule-breaking provides a benefit. The 2018 hiring plan, far from being revolutionary, must overcome the same barriers that caused prior reform efforts to fail: a multitude of players, intrinsic power imbalances, a lack of transparency, and a dearth of meaningful enforcement mechanisms.

Proponents of deregulation argue that allowing judges to hire at their own pace would mitigate problems associated with the hiring plan’s artificially compressed timeline. Some point out that a compressed timeline under a regulated hiring plan might create an additional incentive for judges to favor post-graduates, none of whom are subject to the hiring plan’s rules. This may both increase the number of post-graduate applicants and reduce the chances of law students securing a clerkship before graduation.

Will the 2018 Hiring Plan Survive?

So far in the 2020 clerkship hiring cycle, the pilot hiring plan seems to be mostly working, but some students had already gotten clerkship offers before June 15. Unfortunately, the prevailing view from both the pro- and anti-regulation camps is that the 2018 pilot hiring plan is unlikely to be the perfect antidote to the judicial clerkship hiring chaos.

Those in favor of regulation point out that while the new plan has a number of advantages, it does not fundamentally differ from previously unsuccessful attempts. Both Justice Goodwin Liu of the Supreme Court of California and Above the Law’s founding editor David Lat predict the new plan will enjoy limited traction before judges resume the race-to-the-bottom by hiring earlier and earlier. Justice Liu and Lat suspect that the new plan will ultimately be pronounced dead, just like its predecessors, for its lack of binding force and enforcement mechanisms. At the other end of the spectrum, deregulators argue that the free market should rule the law clerk hiring process from the start because they assume that most judges will eventually, if not initially, defect from any new attempt of regulating the system.

Judges, scholars, law school administrators, and students alike should continue to research the pros and cons of the current system and propose innovative solutions. For instance, there has long been a proposal to adopt the medical placement model—a matching program that uses a basic algorithm to match candidates with medical residency programs—in the judicial clerkship hiring process.[10]

If applied to the law clerk selection system, the program would center a rank order of preferences of judges for law clerks, and vice versa for judges, while preserving strict confidentiality for all parties involved.[11] A match would not only be binding, but also eliminate any incentive for judges to interview or extend offers early.[12] In her 1990 article, the late Chief Judge Patricia Wald of the D.C. Circuit expressed some support for the medical placement model, whose feasibility a committee of the D.C. Circuit was exploring at the time. However, no concrete steps have been taken to implement the medical placement model, let alone any other top-down reform proposal.[13]

There has been notably little discussion of potential enforcement mechanisms to rein in judges who deviate from hiring plans and start the race to the bottom. Indeed, the remarkable independence of Article III judges stands at the core of the challenge of reforming the U.S. judicial clerkship selection process. Some commentators have suggested that Congress could mandate that judges not hire law clerks before a certain date each year; but even they concede that “that could not possibly be the best use of Congress’ time.”[14] Others have suggested that the government could punish law students who apply early through fines or prison terms, but this seems far too extreme.[15]

Some attempts have been made to fix specific problems rather than overhaul the process. For example, the mentorship group “Law Clerks for Diversity” was recently founded by two former federal law clerks to “to increase the diversity of federal clerks by helping diverse applicants navigate the process and find the right opportunities to maximize their potential to land a clerkship.” The group “connects diverse candidates with current and former law clerks, practitioners, and judges for mentorship and assistance applying for federal clerkships.” Such bottom-up efforts may help make the black-box clerkship hiring process more transparent to traditionally disadvantaged applicants, even if they do not operate by attempting to alter judges’ hiring timeline.

Perhaps it is finally time to try out the medical placement model; or better yet, to develop other proposals that will include the pros of the regulation and deregulation solutions that we have analyzed so far, while actively avoiding the cons of each. Despite a potential “Heisenberg problem,”[16] we must not let the conversation die in order to further reform the judicial clerkship hiring system, and, alas, to foster lasting order in court.

 

* April Xiaoyi Xu is a rising 3L at Harvard Law School. She was a judicial intern to Judge Alvin K. Hellerstein at the United States District Court for the Southern District of New York (SDNY). April took Justice Elena Kagan’s seminar on the Supreme Court’s 2018 term. She has been writing a legal-thriller romance novel that is partially set at the U.S. Supreme Court.

 

[1] See, e.g., Patricia M. Wald, Selecting Law Clerks, 89 Mich. L. Rev. 152, 160 (1990).

[2] Diane Wood & Aaron Nielson, A(nother) New Plan for Clerkship Hiring, 102 Judicature 70–71 (2018).

[3] See Trenton H. Norris, The Judicial Clerkship Selection Process: An Applicant’s Perspective on Bad Apples, Sour Grapes, and Fruitful Reform, 81 Calif. L. Rev. 3, 784, 785–88 (2000).

[4] Wood & Nielson, supra note 2, at 71.

[5] Id. at 71–72.

[6] Id.

[7] Id.

[8] Kozinski retired abruptly from the bench in 2017, after facing multiple sexual harassment allegations.

[9] Alex Kozinski, Confessions of a Bad Apple, 100 Yale L.J. 1707, 1714 (1991).

[10] See, e.g., Wald, supra note 1, at 160–61 (1990).

[11] Norris, supra note 3, at 792.

[12] Louis F. Oberdorfer & Michael N. Levy, On Clerkship Selection: A Reply to the Bad Apple, 101 Yale L.J., 1108, 1100 (1992).

[13] See Oberdorfer & Levy, supra note 12, at 1098.

[14] Wood & Nielson, supra note 2, at 71.

[15] Id.

[16] Will Baude, Some Reluctant Skepticism About the New Law Clerk Hiring Plan, Reason: Volokh Conspiracy (Aug. 27, 2018, 10:36 AM), https://reason.com/2018/08/27/some-reluctant-skepticism-about-the-new/. The “Heisenberg problem” refers to the proposition that, “if those of us who worry about the plan state publicly that it probably won’t work because judges aren’t following it, it may lead to even more judges not following it.”

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Bill Barr Unwittingly Makes the Case for Banning Major Corporate Mergers

By Sandeep Vaheesan*

Attorney General Bill Barr inadvertently showed the fundamental problems with federal policy on corporate mergers. In testimony to Congress last month, a Department of Justice (DOJ) career employee revealed that Barr had directed the Antitrust Division to closely scrutinize mergers in the highly fragmented cannabis industry (operating in states that have legalized the substance) due to Barr’s personal animus toward the industry. Even as the Antitrust Division cleared large mergers in food processing, agriculture, telecom, and other industries, it devoted substantial resources to advancing Barr’s agenda against the cannabis industry, despite no apparent threat to fair competition from mergers among cannabis firms. Barr’s conduct and the Antitrust Division’s record show that the present approach to mergers—open-ended and subjective—is long overdue for root-and-branch overhaul.

What might an alternative system look like? Representative Alexandria Ocasio-Cortez and Senator Elizabeth Warren offered a preview with their Pandemic Anti-Monopoly Act, which would prohibit all mergers and acquisitions by corporations and investment funds worth more than $100 million for the duration of the COVID-19 crisis and its aftermath. A clear, rules-based system tied to firm size and market share would stop potentially problematic mergers and allow tie-ups that fall below both the size and the share thresholds. This merger regime would protect the public from concentrated corporate power and small businesses from officials like Attorney General Barr, while entailing little or no economic loss for society.

Present merger policy is an exercise in prediction. Under their shared merger evaluation framework, the Antitrust Division and its sister agency, the Federal Trade Commission (FTC), generally try to forecast the effects of a merger on prices, product quality, innovation, and other consumer-oriented criteria. Relying on this clairvoyance, they only seek to stop a merger in court when they are confident that the combination would likely harm consumers and that these adverse effects cannot be “remedied” through the sale of business assets or duties of fair conduct.

The open-ended, predictive character of merger analysis grants enforcers substantial discretion. The subjectivity of merger analysis is compounded by a review process that is shrouded in extraordinary secrecy. Under this system, the DOJ and FTC can easily clear harmful mergers: consider Antitrust Division chief Makan Delrahim guiding T-Mobile’s acquisition of Sprint and the Obama Administration’s decision to drop its challenge to the merger between American Airlines and US Airways in 2013 following intense lobbying by the airlines’ political allies. That same latitude also allows the agencies to investigate and bog down innocuous deals, as the Antitrust Division did with the cannabis mergers.

The antitrust agencies closely review fewer than five percent of all reported mergers in a typical year, and usually confines these reviews to mergers involving firms in concentrated markets. At Attorney General Barr’s behest, the DOJ has focused its attention on cannabis mergers: Of the thirty-one combinations it closely scrutinized in 2019, nine were in this industry. Some of these mergers involved firms with miniscule market shares—0.35% in one instance. And yet the Antitrust Division enlisted “staff from other offices [in the Division] . . . including telecommunications, technology, and media” to assist, and the Division compelled the merger parties to produce hundreds of thousands or millions of documents.

A simple rules-based system would reduce the discretion of executive branch officials like Barr. Representative Ocasio-Cortez and Senator Warren proposed banning mergers and acquisitions by medium-sized and large firms and investment funds during the COVID-19 pandemic and recovery period. They highlighted how the crisis-triggered distress of thousands of businesses could lead to another wave of consolidation and produce a post-crisis economy even more concentrated than the present one. Their proposed ban on acquisitions by firms and funds worth more than $100 million should be made a permanent part of merger law, and not be confined to the current and future crises.

In addition to limits tied to acquirer size, merger law should also prohibit mergers that unduly concentrate specific markets or extend firm power into adjacent markets, much like the Antitrust Division did through the early 1980s. For example, mergers that combined firms each with a share of 4% or more in a highly concentrated market were illegal under this system, and a firm with more than 10% share in one market could not acquire a firm with 6% share with whom it had or could have a buyer-seller relationship. Under a system of clear rules on mergers, firms that fell below both the size and the market share thresholds would be free to combine and have greater assurance that enforcers hostile to their business could not use antitrust as a weapon.

Would this broad ban on large and medium-sized mergers hurt consumers? On the contrary, it would help them and the public. Mergers frequently lead to higher prices and other harms to consumers. They also often lead to large-scale layoffs, and corporate concentration generally depresses workers’ wages. Consolidations also eliminate vital social redundancies that, for instance, left the United States without enough spare hospital beds or a sufficient emergency stockpile of ventilators. At the same time, even with a strict anti-merger regime, firms of all sizes would still be free to improve their products, invest in new plants and facilities, and hire more workers. As the Supreme Court wrote in 1963, “one premise of an anti-merger statute . . . is that corporate growth by internal expansion is socially preferable to growth by acquisition.”

While the present tolerance of mergers rests on an assumption that mergers “generate significant efficiencies and . . . may result in lower prices, improved quality, enhanced service, or new products,” this theory lacks factual support. Offering a bleak assessment of the social benefits of mergers, Professor Melissa Schilling, of the NYU Stern School of Business, wrote, “A considerable body of research concludes that most mergers do not create value for anyone, except perhaps the investment bankers that negotiated the deal.”

What about distressed firms? The present crisis has shown that mergers are not necessary to help struggling firms. Congress has appropriated hundreds of billions of dollars to support businesses and their workers during the COVID-19 pandemic. Direct, efficiently administered public support for firms and workers should be the default during crises that depress macroeconomic activity and threaten even the best-managed enterprises.

Outside of recessions, reorganization through bankruptcy (with the replacement of management and the allocation of losses to shareholders and creditors) is the appropriate path for troubled businesses that have suffered due to mismanagement and unsustainable debt burdens. Acquisitions by powerful corporations should be a true last resort, permitted only for an acquiree that faces near-term liquidation and has no other prospective buyer or lifeline.

Through his misuse of anti-merger law against an industry he personally disfavors, Attorney General Bill Barr unintentionally made the case for root-and-branch reform of our merger policy. The present framework is open-ended, subjective, and ripe for abuse. Even as the DOJ permitted mega-mergers across the economy, it targeted the cannabis industry for special scrutiny. A rules-based system governing mergers and acquisitions would protect the public from the harms of corporate power and small businesses from the misuse of executive power.

 

* Sandeep Vaheesan is legal director at the Open Markets Institute and leads their legal research and advocacy work. He has published articles and essays on a variety of topics in antitrust law, including merger policy and the political content of antitrust.

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Reproductive Injustice and COVID-19

By Seema Mohapatra*

In the midst of a global pandemic and horrifying examples of police injustice, the Supreme Court added to the pain by delivering several blows to reproductive justice in the last few weeks. Although June Medical v. Russo was a technical victory, the dissenting and concurring opinions, written by five men, make it clear that the majority of the Court seeks to restrict access to abortion care, regardless of how it affects pregnant people’s lives. Legal scholars, including Melissa Murray, Leah Litman, and Caroline Mala Corbin, note that June Medical actually may make abortion easier to restrict. Chief Justice Roberts upheld Whole Woman’s Health v. Hellerstedt in name only. According to Roberts, courts can only overturn abortion regulations that place a substantial obstacle for people seeking abortions, even if those laws do not benefit pregnant people’s health and safety. This is a departure from a faithful reading of Whole Woman’s Health, which would require the court to balance the burdens on pregnant people with health and safety benefits. Although some commentators interpreted Roberts’ concurrence as being good news for abortion rights, there are some worrying signs, such as the Court ordering the Seventh Circuit to reconsider, in light of June Medical, two Indiana abortion regulations they had previously invalidated. That doesn’t feel like a win.

Little Sisters of the Poor v. Pennsylvania was a definite loss for reproductive justice with seven Justices upholding the Trump Administration’s legal authority to issue broad exemptions to the Affordable Care Act’s (ACA) contraceptive requirement based on moral or religious objections. This was the third time the policy was before the Supreme Court, and the seven Justices did not appear to care that up to 125,000 women (by the government’s own admission) would lose their contraceptive coverage if Trump’s rules went into effect.

These cases show how the Supreme Court is largely indifferent to people’s reproductive realities, particularly the lives of poor, Black women. Amicus briefs filed in June Medical and Little Sisters tried to focus the Court’s attention on how the decisions regarding abortion care and contraception affect poor people of color, especially Black women, the most. Yet, there was no mention of race at all in either case.

This willful omission of race has always undercut the goals of racial justice, but it is inexcusable in the present moment. The COVID-19 pandemic has laid bare deep racial inequities in healthcare, and COVID-19 related restrictions on reproduction and lack of support for childbearing and childrearing disproportionately burden Black women and other women of color. The Supreme Court seems unwilling to take into account who their decisions impact most. Additionally, even with a different composition of the Court, courts alone cannot achieve justice. With input from communities of color, legislative action and policy decisions that ensure access to health care and financial support would be better able to support reproductive justice. This essay views the COVID-19 pandemic through a reproductive justice (RJ) lens to demonstrate how a comprehensive health justice approach is needed to address these issues.

I. Reproductive Justice

The RJ movement was started by Black women who felt unseen by the reproductive rights movement, which had focused mainly on abortion rights and the concept of choice. Black communities faced (and continue to face) involuntary sterilizations and criminalization of their pregnancies. The RJ framework focused on three tenets: 1) the right not to have a child, 2) the right to have a child, and 3) the right to parent one’s child safely. As the National Network of Abortion Funds puts it, “Reproductive justice is as much about raising our children without fear of being killed by a police officer as it is about accessing an abortion.”

II. Reproductive Justice and COVID-19

The COVID-19 pandemic has been devastating to people of color, especially Black people, who are more likely to have lost a job, work as low wage essential workers, and are more likely to die from COVID-19. Looking at the COVID-19 pandemic through an RJ lens shows how facially neutral laws and policies disproportionately harm Black women and why relying on only courts for help is inadequate. Not only are courts often unwilling to address who is harmed by their decisions, but courts are primarily limited to interpreting laws. Directed legislative action and policies that are consciously designed to help achieve equity for communities of color is needed to achieve health justice in these areas.

A. The Right Not to Have a Child

RJ requires affordable, safe access to abortion care and contraception. Being denied abortion care is not only an affront to one’s dignity, but it is also unhealthy. Among people with unwanted pregnancies, “those who experience childbirth report worse overall health five years later than those who underwent an abortion.” When one compounds that with the fact that Black and Native American individuals are already sicker and live shorter lives than white people, the negative health consequences of not having access to abortion are stark.

During the pandemic, many states restricted medical services deemed as non-essential while stay-at-home orders were in effect. Twelve states led by officials already hostile to abortion care opportunistically deemed abortion as non-essential in order to restrict access. The penalties for violating such orders included steep fines and jail time.

Even as states started allowing non-essential services, roadblocks for abortion remained. For example, Arkansas instituted a requirement that a pregnant person must test negative for COVID-19 two days in advance of an abortion. One woman had to drive to Little Rock seven times before she was able to obtain an abortion, which almost cost her a job as a result. She is one of many who experienced increased costs and unnecessary delay. Multiple trips and lost wages are not minor inconveniences, and not everyone has the ability to travel, due to lack of money, transportation, childcare, or time off from work.

Low-income people have the highest rates of abortion, in part because a person living in poverty is more than five times as likely as someone not living in poverty to have an unintended pregnancy. Thus, abortion restrictions overwhelmingly impact poor women given that a staggering 76% of people who have abortions are at or below 200% of the federal poverty level. And poverty is racialized in America. According to the Kaiser Family Foundation, Black, Native American, and Latinx women are disproportionately poor: 22% of African Americans and 19% of Latinx individuals live below the poverty level, compared with only 9% of whites and 11% of Asian Americans

Two of the most common reasons to seek abortion care are economic insecurity and an inability to financially care for a child, and both stressors have been exacerbated by the economic effects of COVID-19. Due to worsening employment conditions since the pandemic began, people are concerned about their own economic well-being and adding the expenses of a child may be more difficult than before. Unlike any other type of health care, abortion is specifically carved out by Medicaid via the Hyde Amendment and the appropriations bills that incorporate the Hyde Amendment each year. This means poor pregnant people who are covered by Medicaid have to pay out of pocket for abortion care in most states

B. The Right to Have a Child

The second tenet of an RJ approach moves beyond abortion rights and delivery to support for people during pregnancy and at birth. Carrying a pregnancy to term has long been fraught for people of color and low-income individuals. The pandemic has only deepened the disparities in prenatal care and post-birth assistance for Black and poor women.

Consider that the United States has the worst maternal mortality rate among similarly situated countries, and Black women are up to four times more likely to die from a pregnancy-related death than white women. Due to the pandemic, many pregnant people have received care via telemedicine, rather than in in-person visits. Although telemedicine has the potential to improve access to prenatal care, studies that have demonstrated that it does not result in worse birth outcomes included “mainly white, usually wealthy, and privately-insured populations.” Given that Black, Latinx, and Native American pregnant people receive less prenatal care than other racial groups, and that many Black women’s prenatal and postnatal complaints are dismissed even in pre-pandemic times, it is important to ensure that telehealth is not exacerbating the divides that already exist. In one recent case in New York City, where Black women die in childbirth at rates twelve times that of white women, a pregnant Black woman died due to complications that could have been detected with in-person visits. The issue of what is adequate prenatal and postnatal care during the pandemic for people of color needs more attention, especially when physicians report that pregnant patients are delaying care due to fear of contracting the virus.

Pregnant people experience acute effects of COVID infection and can pass the virus to their infant via nursing or other contact. To protect healthcare workers or preserve equipment, two New York hospital systems prohibited visitors to delivery and labor departments. After an outcry, the Governor issued an order preventing hospitals from barring all visitors. Some medical facilities now permit just one person to visit. People who rely on the care of a doula or birthing support person then have to choose between that their birth assistant person and a partner or family member to be present during labor. Having in-person support is especially important for pregnant people of color. The Giving Voices to Mothers study found that poor Native American, Black, and Latinx women report much higher rates of mistreatment by providers during birthing than white women. Although safety in a pandemic is certainly important, we need to ensure that even protective measures passed with good intentions do not have disparate racial impacts.

C. The Right to Parent a Child

The third tenet of RJ is recognition of a right to parent one’s children with dignity. With disturbing recent reminders like George Floyd and Ahmaud Arbery caught on video, the crisis of over-policing and punishing the Black community could not be clearer. Black men are disproportionately incarcerated; in addition to the injustice they face, their children bear the consequences of having their fathers unfairly in the criminal justice system. Over-policing is associated with a higher infant mortality rate. Black women also suffer financial, emotional, and childrearing burdens related to mass incarceration. In addition, Black mothers are more likely to work in low wage jobs and need affordable childcare options.

Many child care facilities are closed due to the pandemic but, as discussed above, many women of color are essential workers who cannot work from home. The lack of affordable child care is a challenge during normal times. But with schools closed and a shortage of child care, single mothers, who are disproportionately Black, Latinx, and Native American, are particularly vulnerable. Financial instability could result in greater involvement by child welfare officials, who have long targeted Black single mothers. As Dorothy Roberts has documented, Black mothers disproportionately have their parenting decisions questioned and subject to “extraordinary scrutiny and vilification” by the state, which in turn leads to the overrepresentation of Black children in the foster care system. Khiara Bridges critiques how poor mothers are more likely to be subject to child welfare investigations and how “the fact of poverty itself gives the state reason to suspect child maltreatment.”

As an overarching, and concluding, concern, Americans are facing unprecedented economic uncertainty with high unemployment rates and loss of income, loss of health insurance, and lack of ability to pay rent or mortgage. These economic realities are worse in states that did not expand Medicaid. The dim economic outlook makes it difficult to raise children for all people, but especially people of color, who are facing more dire financial consequences from this pandemic. These problems are outside the ambit of the courts and we need to refocus the conversation on policymakers, not courts.

III. Much Work Left to Do

Though there are numerous reproductive injustices exacerbated by the pandemic, the purpose of this essay is to survey some of the most salient, particularly as they impact communities of color.

In taking up these injustices, advocates cannot look to courts alone to address the RJ challenges posed by COVID-19. In Policing the Womb, Michele Goodwin suggests that a “RJ Bill of Rights” may be helpful, at least conceptually, to focus on the broad RJ challenges facing women. David Cohen and Carol Joffe, in their book, Obstacle Course, note that “addressing the massive income inequality that characterizes American society” could improve the lives of people who seek abortion. Community-led policies, long term financial and legislative support, universal health insurance, and dismantling structural discrimination are vital to restoring reproductive justice.

 

* Seema Mohapatra (J.D., M.P.H.) is a tenured associate professor of law and Dean’s Fellow at the Indiana University Robert H. McKinney School of Law.