By / Jun 27

Last week the U.S. Supreme Court ruled in The American Legion v. American Humanist Association that a 40-foot memorial cross located on public property in Bladensburg, Md., does not violate the Establishment Clause. The ERLC had filed an amicus brief in support of the petitioners alongside a diverse coalition of religious denominations representing more than 55 million Americans.

Here is what you should know about amicus briefs and how they are used by the courts.

What is an amicus brief?

An amicus brief is a learned treatise submitted by an amicus curiae (Latin for “friend of the court”), that is, someone who is not a party to a case who offers information that bears on the case but that has not been solicited by any of the parties to assist a court. The amicus brief is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case.

Which recent cases has ERLC filed amicus briefs?

Because Washington remains a deeply divided city along partisan lines, many critical issues are now debated in the courts. The ERLC directs its resources to cases deciding the sanctity of human life and the future legality of religious liberty. A central way for the ERLC to address the courts is through filing amicus briefs.

In 2018, in addition to the aforementioned Supreme Court case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commision, the ERLC also filed a brief in the landmark pro-life case National Institute of Family and Life Advocates (NIFLA) v. Xavier Becerra, Attorney General of California.NIFLA had implications for free speech and the life-saving work of pregnancy resource centers in communities all around our country. Thankfully, the justices decided a convincing victory for religious liberty and the protection of pro-life work by ruling 5–4 in favor of NIFLA.

One of the cases ERLC engaged at the appellate level was Gaylor v. Mnuchin at the 7th Circuit Court of Appeals. At stake in this case is a tax-free housing allowance that allows pastors, rabbis, and other religious leaders to live in close proximity to their houses of worship. The 7th Circuit recently ruled 3–0 to uphold the constitutionality of the housing allowance.

Can amicus briefs be submitted to all courts (i.e., state, federal, Supreme Court)?

Amicus briefs are generally filed only in appellate cases heard by appeals courts, including intermediate courts of appeal, state supreme courts, and the U.S. Supreme Court.

Who can submit an amicus brief?

The rules about who can file an amicus brief in state courts are determined by the individual states. In federal courts, Rule 29 of the Federal Rules of Appellate Procedure governs such briefs:

The United States or its officer or agency or a state may file an amicus brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing, but a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge's disqualification.
 

In the Supreme Court, Rule 37 provides that “an amicus curiae brief which brings relevant matter to the Court’s attention that has not already been brought to its attention by the parties is of considerable help to the Court. An amicus brief which does not serve this purpose burdens the staff and facilities of the Court and its filing is not favored.” While any interested party can contribute or sign an amicus brief, only an attorney admitted to practice before the Supreme Court can only file the actual brief. After filing, the Court decides whether it will accept the brief.

How many amicus briefs are filed with the Supreme Court each year?

There are few cases without amicus filings and many cases have cumulative filings that total in the double digits, notes Adam Feldman. For the 2018-2019 term (October to February) the Court received 529 amicus briefs.

Many groups file multiple briefs per year. The National Association of Criminal Defense Lawyers Cato Institute, ACLU, U.S. Chamber of Commerce, and American Bar Association are groups, as Feldman points out, that have each filed hundreds of briefs over their lifespans.

Do amicus briefs have any influence on Supreme Court rulings?

While it’s impossible to know how any particular amicus brief influences a justice or their decisions, one helpful proxy is the number of citations to such documents they include in their rulings. For example, in a 2014 law review article, law professor Allison Orr Larsen found 606 citations to amicus briefs in the 417 Supreme Court opinions decided from 2008 to 2013. Of those 606 citations, 124 of them—or roughly 20 percent—were citations to amicus briefs to support assertions of legislative fact.

Which case garnered the most amicus briefs?

Not surprisingly, the single case with the most amicus briefs is Obergefell v. Hodges, the 2015 same-sex marriage case. There were 147 briefs filed in that case. It is also the case with the most signatories on a single brief (207,551 signatories calling for nationwide legalization of same-sex marriage on The People’s Brief.)

Since then the case with the most amicus briefs was Masterpiece Cakeshop v. Colorado Civil Rights Commission, the 2018 case that determined whether a cakeshop owner’s reasons for declining to make a cake for a same-sex couple’s wedding celebration violated the free exercise clause.

ERLC joined amicus briefs filed in both of those cases.

By / May 17

Over the past two weeks, three neighboring Southern states have passed legislation to ban some or all abortions. Last week Georgia passed a law that recognizes the unborn as legal persons as soon as they have a “detectable human heartbeat.” This week Tennessee became the latest state to sign a “trigger law” criminalizing abortion, while Alabama passed the strictest abortion ban in the nation.

The laws in Alabama and Georgia will inevitably be challenged in the federal courts. But that is what the state legislators who passed the laws intend. “With the political and legal landscape finally tilting in their favor, anti-abortion legislators feel empowered to move beyond abortion restrictions and take a shot at full bans,” says Emma Green in The Atlantic. “One day, they believe, this legislation won’t just be politically symbolic—they hope abortion will become illegal across the country.”

Here is what you should know about the recent pro-life laws in these three states:

Alabama

What the law changes

As the Alabama Human Life Protection Act points out, the state of Alabama already has a statute criminalizing abortion that was made unenforceable by the U.S. Supreme Court’s decision in Roe v. Wade.  The state also approved last year a constitutional amendment declaring and affirming the public policy of the state to recognize and support the sanctity of unborn life and the rights of unborn children.

The new law makes performing an abortion a Class A felony (punishable by life imprisonment of not more than 99 years or less than 10 years) and makes an attempted abortion a Class C felony (punishable by imprisonment of one year and one day up to 10 years).

Exceptions and exemptions

The law allows an abortion to be permitted if an attending physician licensed in Alabama determines that an abortion is necessary in order to prevent a serious health risk to the unborn child's mother. This standard is that, in reasonable medical judgment, the child's mother has a condition that so complicates her medical condition that it necessitates the termination of her pregnancy to prevent her death or a serious risk of substantial physical impairment of a major bodily function.

Under this law, and unlike current federal abortion law, a “serious health risk” does not include a condition based on a claim that the woman is suffering from an emotional condition or a mental illness. An exception can be made, though, if a psychiatrist with a minimum of three years of clinical experience and licensed in Alabama examines the woman and documents that the woman has a diagnosed serious mental illness and because of it, there is reasonable medical judgment that she will engage in conduct that could result in her death or the death of her unborn child.

No exception is made for cases of rape or incest.

The law also prevents a woman upon whom an abortion is performed or attempted from being criminally or civilly liable. 

 Status

The law will take effect in six months.

Georgia

What the law changes

The Living Infants Fairness and Equality (LIFE) Act defines a natural person as including an unborn child with a detectable human heartbeat. Under the new law “detectable human heartbeat” means “embryonic or fetal cardiac activity or the steady and repetitive rhythmic contraction of the heart within the gestational sac.” “Unborn child” means a “member of the species Homo sapiens at any stage of development who is carried in the womb.”

The law also provides certain rights to these unborn children, such as allowing them to be considered as minor dependents on state tax returns, to be eligible for paternal child support and certain public-funded benefits, and to be included in “population-based determinations.”

Exceptions and exemptions

The law does not prohibit an abortion prior to the age at which a heartbeat can be detected. The law allows an exception in cases of rape or incest if a woman files a police report and the pregnancy is less than 20 weeks. It also allows exceptions when an abortion is necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function of the pregnant woman or when in reasonable medical judgment, an unborn child has a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth.

Although this new law does not directly exempt women who have an abortion from prosecution, other Georgia criminal statutes prohibit women from being prosecuted for terminating their own pregnancy.

Status

The law will take effect on Jan. 1, 2020.

See also: Explainer: What you should know about fetal heartbeat legislation

Tennessee

What the law changes

The Human Life Protection Act is a trigger law that will go into effect on the thirtieth day following the occurrence of either passage of a U.S. Constitutional amendment that allows the states to prohibit abortion or the Supreme Court’s overturning of Roe v. Wade.

If either of those events occur, the law will make abortion a Class C felony (punishable by a prison term of three to 15 years, as well as fines of up to $10,000).

Exceptions and exemptions

The law allows an abortion to be permitted if an attending physician determines it is necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the mother.

The law does not include an exemption for any reason relating to the pregnant woman’s mental health.

No exception is made for cases of rape or incest.

The criminal penalties would apply only to the person who performs or attempts to perform an abortion commits the offense of criminal abortion and not the pregnant woman.

Status

The law will only take effect when one of the conditions mentioned above occurs and makes it enforceable.

By / Jan 25

What just happened?

On Tuesday, the 46th anniversary of the Roe vs. Wade decision, the New York legislature passed the Reproductive Health Act, a law that significantly expands abortion rights and removes protections for women and children.

The Assembly passed the legislation 92-47 while the Senate passed the measure 38-24. Gov. Andrew Cuomo signed the bill into law on Tuesday evening.

What changes are made in the new law?

The Reproductive Health Act makes the following changes to New York state law:

Removes abortion from the criminal code: A 1970 law made third-trimester abortions a matter of criminal law. Under Section 125.00 of the penal law “homicide” was defined as “conduct which causes the death of a person or an unborn child with which a female has been pregnant for more  than  twenty-four  weeks.” The Reproductive Health Act removes the language as it applies to unborn children.

Loosens the requirement for who can be an abortionist: Previously, only licensed physicians were allowed to conduct abortions. The Reproductive Health Act now allows licensed nurse practitioners, physician assistants, and midwives to also perform abortions.

Allows late-term abortions: The new law allows licensed health-care practitioners to perform abortions to use their “reasonable and good faith professional judgment based on the facts of the patient’s case” to conduct abortions within twenty-four weeks from the commencement of pregnancy, or if there is an “absence of fetal viability,” or if the practitioner considers the abortion “necessary to protect the patient’s life or health.”

What are the possible effects of the new law?

The new law removes important protections for both mothers and children.

For example, the Act states that, “Abortion is one of the safest medical procedures performed in the United States.” Even if this were true, the deregulation of the procedure will make it likely that those with less skill and training will now be performing abortions on vulnerable women.

Removing abortion from the criminal code will also make it difficult, if not impossible, for prosecutors to bring criminal charges in cases of forced abortion, which can occur during domestic violence cases when a woman loses a child during pregnancy. “It is unconscionable to think that anyone would deprive a pregnant domestic violence victim the justice she deserves,” said Sen. Cathy Young.

The change may also affect babies outside the womb. New York public health law previously mandated that a viable infant born alive following an abortion performed after 20 weeks’ gestation “be accorded immediate legal protection under the laws of the state of New York. . . ” But as Jason J. McGuire of New Yorkers for Constitutional Freedoms notes, the new law withdraws legal protection from such infants, making it legal for them to be denied treatment

Prior versions of the legislation also included conscience protections for institutions or health care professionals whose beliefs do not allow them to participate in abortion. But the new law makes no such accommodations, and because of its broader scope, could affect a broader range of health care practitioners.

Why are they changing the law now?

Democrats in the New York legislature have attempted to pass the Reproductive Health Act in each session for most of the past decade, but were blocked by Republicans in the state senate. The election in November gave the Democrats a majority in the Senate, allowing them to push through this legislation.

How many abortions are conducted each year in New York?

In 2014, the most recent year for which data is available, New York reported 119,940 abortions. The state’s abortion rate of 23.1 per thousand is twice the national average, and about 25 to 27 percent of pregnancies in the state end in abortion. 

By / Oct 30

The nation’s eyes are on Congress one week away from the November 2018 elections, but the most consequential changes to public policy which affects your daily life happen on your state and local ballots. For one of those ballot initiatives, the ERLC policy team speaks to a criminal defense attorney in Louisiana leading the campaign to overturn a 138 year old law with critical implications for justice, equity, and race in America.

Guest Biography

Ed Tarpley is an attorney in Alexandria, Louisiana, who served as District Attorney for the 35th judicial district from 1991 to 1997. In addition to his law practice and other professional commitments, Ed serves on the Board of Directors of the Cenla Pregnancy Center, is a member of the Steering Committee for the Louisiana Governor's Prayer Breakfast, and previously served on the Board of Trustees for Louisiana College. He is also the author of a resolution adopted by the Louisiana State Bar Association on June 9, 2016, calling for the legislature to restore the unanimous criminal jury verdict in Louisiana.

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By / Oct 29

Abortions have declined in states where new laws make it harder to have them, the Associated Press noted in June. But abortion has also decreased waned in states where abortion rights are most protected. What are we to make of such findings?

Pro-life advocates claimed this was evidence of the effectiveness state-level abortion restrictions while pro-abortion advocates claimed the decline was due to expanded access to effective contraceptives and a drop in unintended pregnancies. Who is right?

In an attempt to answer that question let’s consider the evidence that various types of abortion laws and policies have on the reduction in the rate of abortion.* State-level restrictions and policies that affect abortion rates usually take one of the following seven forms:

Gestational limits

Partial-birth abortion bans 

Public funding restrictions/bans 

Parental involvement laws

Informed consent laws

Increased access to contraceptives

Physician, hospital, and abortion provider requirements

For the sake of brevity, I’ll merely summarize the findings on each type of restriction and provide links to resources that explain the current evidence. Since there are no authorities or evidence that everyone in the debate can consistently agree on, I’ll refer to and cite studies and sources that are generally considered reliable or uncontroversial within the pro-life community. 

Image source: Americans United for Life

Here are brief summaries of the effect on abortion rates of various policies: 

Gestational limits and partial-birth abortion bans — While there are numerous reasons to support such restrictions, it is difficult to determine whether these forms prevent abortions or merely lead women to have abortions sooner in their pregnancy. The evidence for their effect on overall declines in abortion rates is therefore inconclusive.

Reductions in public funding — The clearest evidence we have on the effect of restriction in public funding is in the case of Medicaid. The pro-abortion Guttmacher Institute reviewed more than a dozen studies that analyzed the impact of state Medicaid funding restrictions on abortion. Approximately one-fourth of women who would have Medicaid-funded abortions instead give birth when this funding is unavailable.

Parental notification and parental consent laws — The findings indicate that when a state enacts a parental involvement law, the abortion rate falls by an average of approximately 13.6 percent. Laws that require parental consent instead of parental notification reduce the minor abortion rate by about 19 percent. Furthermore, laws that mandate the involvement of two parents, instead of just one parent, reduce the in-state minor abortion rate by approximately 31 percent.

Informed consent laws — Although the existing research provides solid empirical evidence that Mississippi’s informed consent law—which requires that women seeking abortions make two separate trips to the abortion provider—has reduced abortion rates, the current research provides very little information on the impact of other types of informed consent laws in general or in other states.

Increased access to contraceptives — Use of contraception began increasing in the early 1960s—decades before the decline of abortion that began in the early 1990s. From 1994 to 2008, the rate of unintended pregnancies (a key factor in the rate of abortion) increased for all women at the same time that contraceptive use increased. The connection between contraception and abortion is therefor tenuous at best. Also, lack of access to contraceptives is a negligible factor in abortion rates. According to a Guttmacher Institute study, more than half of women who have abortions used a contraceptive method during the month they became pregnant. Only twelve percent of women who did not use contraception before having an abortion cited having problems, such as an inability to pay for birth-control pills, as the reason for the nonuse. Concerns about contraceptive methods were cited by 32 percent of nonusers and included mainly problems with methods in the past (20 percent) and fear of side effects from methods (13 percent).

Physician, hospital, and abortion provider requirements — Most of these types of requirements are not stringent enough to have an effect on the overall abortion rate within a state. One possible exception is the type of law that was passed in Texas last year that requires strict physical standards for clinics and requires doctors who perform abortions to have admitting privileges at local hospitals. This change forced more than half the state’s 19 abortion clinics to close their doors. It is too early to tell, though, how these types of laws will affect abortion rates in the future.

While we have some ideas what policies work and which do not (parental involvement law reduce abortion, increased contraception use mostly does not), for most types of abortion restrictions it remains unclear what influence the laws are having. Part of the problem is a simple lack of comprehensive empirical data and adequate research in this area. As better data becomes available, we should be able to make better determinations of the effect of such laws.

However, we do know the abortion rate is dropping across the nation— a decrease in abortions of about 12 percent since 2010—and that state level abortion restrictions are correlated with this change. Since 2010 states have adopted 282 new abortion restrictions, including 51 this year alone. But is the abortion rate dropping because states are passing new laws or are the states able to pass the new laws because the public is becoming more pro-life, and thus there is less overall demand for abortion? Unfortunately, there is simply not enough evidence to determine the level of causation with a sufficient degree of certainty. 

Does this mean that we in the pro-life movement are wasting our time in seeking more state level restrictions? Not at all. Even if such laws are not currently affecting the rate of abortion, they serve an important moral purpose, both now and in the future.

The result they have today is to force some proportion of women to put more thought and effort into their decision to have an abortion. Even if this leads to only a slight change in the number of abortions, the number of children that can be spared makes it worth the effort. 

The importance of such laws will also be made clear when Roe v. Wade is overturned. These types of pro-life restrictions lay the essential groundwork for the types of legislation that will be needed when the Supreme Courts puts abortion law back in the hand of state governments. States that have developed the processes and alliances necessary to pass abortion restrictions today will likely have more success implementing similar restrictions in the future.

What this means is that we should be cautious in making claims about the effects of most state level restrictions that exceed what can be known. We can unintentionally undermine support for the pro-life cause when we make claims that are overly broad and cannot be supported by evidence. But we should nevertheless remain bold in advancing such legislation. Even if the effect on abortion rates cannot be known with certainty, pro-life laws are an important way for us to seek justice for America’s unborn children. 

* Reducing the total number of abortions is obviously more important to the pro-life movement than merely reducing the rate of abortion. But changes in population and demographics, especially at the state level where most abortion laws are implemented, can skew the total numbers of abortions. For this reason the abortion rate provides a better measure by which to gauge the effectiveness or state-level abortion laws.

Image source: Americans United for Life


Note: In January ERLC and Focus on the Family will join together for Evangelicals for Life, a first ever major pro-life conference for evangelicals in conjunction with the March for Life. For more information on the event visit the website for Evangelicals for Life.