Time to Mobilize
Women's reproductive freedom faces imminent threat.
BY KELLIE SHOEMAKER
Planned Parenthood typically refrains from asserting the sky is falling or the bridge is burning. But as of July 1, the sky is holding precariously above us and the bridge has a match flickering close to its wooden planks.
On the afternoon before Independence Day weekend — a holiday in which we celebrate and honor freedom — Supreme Court Justice Sandra Day O'Connor announced that she would resign from the highest court in the nation effective on the confirmation of her successor. Because Planned Parenthood is the nation's largest voluntary reproductive health organization, we know firsthand that nothing matters more for women's independent freedom, health, lives and safety than the justice appointed to be her replacement.
Justice O'Connor's announcement marked the end of the longest period since the 1820s without a Supreme Court resignation, and the first Supreme Court nominee of President Bush.
This is where the bridge starts to smolder.
Thirty-three years ago, a clear majority (7-2) voted in favor of Roe v. Wade, the landmark case that guaranteed legal access to abortion for women nationwide. Since then, the makeup of the Court has changed dramatically.
When Planned Parenthood v. Casey reached the Court in 1992, only two remaining justices supported Roe in its entirety. In 2000, when the Supreme Court reviewed Stenberg v. Carhart, four of the nine justices made it clear that they support either overturning Roe v. Wade or eliminating the protections guaranteeing that women's health and lives are paramount.
With Justice O'Connor's resignation, there remain only four justices on the court who have ruled to protect women's health and safety.
President Bush has been given an opportunity to fill a coveted seat on the Supreme Court and to shape the ideological bent of the court for generations to come. We could face, in the very near future, in addition to an anti-choice White House and an anti-choice Congress, a new majority on the Supreme Court that does not believe the Constitution protects a woman's right to choose.
If this isn't a wake up call for supporters of reproductive freedom, I don't know what it will take.
While news reports have carried reflections of Justice O'Connor's role on the Supreme Court and political insiders have speculated on President Bush's replacement nominee, Planned Parenthood has mobilized. In the immediate days following the announcement, we passed out more than 1,000 postcards to be sent to Sen. Gordon Smith, urging him to ensure the confirmation of a justice who respects a woman's fundamental right to make private childbearing decisions. We have staged demonstrations in Ashland, Medford, Eugene and Albany calling on pro-choice Oregonians to get active and save Roe. But we must do more.
We have to be insistent and steadfast. The fate of women's reproductive freedom faces an imminent threat this fall. For the first time in more than five years, the Supreme Court will hear a case directly relating to abortion. The case, Ayotte v. Planned Parenthood, will challenge the constitutional protection for women's health. The court's decision in this case could have a dramatic impact on the ability of women and their doctors to challenge any abortion restriction, including an abortion ban, on the absence of a health exception.
President Bush has said his role models for a Supreme Court nominee are Justices Scalia and Thomas — both of whom are on record saying Roe v. Wade was wrongly decided and should be overturned.
It's time to hold our hands up high to keep that sky in place and get out our fire extinguishers. Planned Parenthood knows that this vacancy is important. We hope you will join us in fighting to keep a woman's right to choose. To find out more about how you can get involved, visit www.saveroe.com or call locally, 342-6042 x35.
Eminent Domain Redefined
An analysis of the Kelo v. City of New London case
By David Skillman and Christopher Ledford
As Oregon's economy hovers between growth and stagnation, tax revenues remains a source of bitter dispute in the Legislature, and local governments are engaged in a constant struggle to foster economic growth. For those who don't wish to sacrifice environmental quality or urban vitality in exchange for suburban sprawl, the need for smart, coordinated planning is a vital component of any such effort.
Fortunately, Oregon requires every community to develop an urban growth boundary (UGB), based on 20-year growth projections. With limited areas within which to develop, almost 40 Oregon municipalities have adopted urban renewal districts designed to attract greater concentrations of businesses to urban areas.
Yet, deciding how far local governments should go in planning and promoting development is never an easy line to draw — if, indeed, it can ever be drawn reliably. Although proponents of smart growth may not subscribe to the strict property-rights ideology that resulted in the passage of Measure 37 last November, most would likely recognize limitations on the government's ability to dictate what property owners do with their land. This tensions was highlighted June 23 when the U.S. Supreme Court handed down Kelo v. City of New London, a decision that, even if its effects ultimately turn out to be minor for the vast majority of property owners, forces us to face the questions of to what extent we are willing to allow such planned development to occur and to what length we are willing to go to further it.
Kelo was somewhat overshadowed by the court's simultaneous release of significant decisions regarding medical marijuana, peer-to-peer file sharing, and the display of religious symbols on government property, all of which were drowned in the political cacophony touched off by Justice O'Connor's retirement announcement. Nevertheless, Kelo is worth dwelling on as it articulated a significant new rule governing the use of eminent domain.
The city of New London, Conn., had suffered through decades of economic decline by the time it approved a development plan in 2000. The plan sought to revitalize a waterfront area, the centerpiece of which was to be a new Pfizer research facility that was supposed to provide new jobs and an enhanced tax base. That facility, along with a small convention center and urban village, was to be sited on land that was both publicly and privately owned. When some of the private landowners refused to sell, the City decided to exercise its power of eminent domain and instituted condemnation proceedings. Put simply, the City decided to seize the land of one private party and turn it over to another private party, albeit one that would provide jobs and an increased source of tax revenue.
The issue before the Court was whether such economic development met the Fifth Amendment's "public use" requirement. The Fifth Amendment requires not only that property owners receive just compensation for property taken from them by the government, but that the seized property must be put to some sort of public use. This prevents the government from simply seizing land from one private party and transferring it to another private party for the latter's sole benefit; some public use must exist. For example, governments may seize property, pay the owner just compensation, and transfer the property to a railroad because the railroad is a "common carrier" with a duty to provide transport to all without discrimination. Such use is considered public despite the fact that the property is privately owned. Those types of transfers have frequently (if controversially and occasionally corruptly) been employed throughout our country's history.
The biggest hurdle for the Court in upholding the transfer of some of the seized land to Pfizer was defining the economic benefit from the transfer as meeting the public use requirement. As with most cases that reach the Supreme Court, the problem lay at the borders of meaning where agreement regarding even the simplest words starts to fracture. Or, more precisely, agreement as to the outcome those simple words should produce starts to fracture.
The Court has previously held that the public use requirement is satisfied by transfers from one private party to another when that transfer is partly motivated by economic reasons. When the Hawaiian legislature broke up the oligopoly that controlled the majority of the state's privately-owned land, one of the primary justifications offered was the that the concentration of ownership had perverse and harmful effects on the real estate market. The Court upheld the abatement of those harmful effects as a public purpose.
Kelo is unique—and surprising—because, unlike in Hawaii, New London's eminent domain power was not used to combat some active harm upon the community. There was no suggestion that the real estate market was functioning abnormally nor was the area condemned because of blight. Instead, the development plan was conceived solely as a way to increase tax revenues and spur economic development.
Admittedly, in an economically depressed area such as New London lack of jobs and municipal revenue may in many respects seem indistinguishable from more active harms to a community. Yet, the notion of uprooting people from their homes or businesses simply because their property could be put to more productive use is troubling. The same logic underlying Kelo could just as easily be used to justify a city zoning ordinance that prohibited low-income housing as insufficiently conducive to developing a strong tax base.
Conversely, the real need of depressed areas for some sort of coordinated planning for development is clear. Even when an area is not depressed economically, smart planning is often not compatible with piecemeal development. Notwithstanding the success of Measure 37's proponents at purveying the view that Oregon's pioneering land use laws are too restrictive, few people actually desire the sort of unmediated sprawl that areas without any sort of zoning experience. However, Kelo isn't merely about setting boundaries and allowing parties to develop within them or even about strict zoning laws. Rather, it gives local governments enormous power to seize land to achieve their development goals, even when that land will ultimately be transferred back into private hands.
The tension between the desire for smart, planned growth and the enormous impact upon local residents that a massive redevelopment plan such as that contemplated by New London can have is not unusual. For example, a major reason advanced by PeaceHealth as to why they moved from downtown Eugene to virgin farmlands on the banks of one of the nation's cleanest rivers was to obtain a 50-60 acre parcel without engaging in a lengthy condemnation process, even though the condemnation would have been for a public use and therefore not subject to the same difficulties as in Kelo. In the PeaceHealth controversy, the City of Eugene estimated that 102 houses would have to be condemned and $34 million expended on land acquisition to facilitate the proposed expansion downtown.
The aversion that PeaceHealth showed to going through the condemnation process, even without the constitutional issue of public use presented in Kelo, underscores that the real protections against the transfer of private property to another private party are political. If local governments act with what appears to be a sincere belief in the ultimate efficacy of their development efforts and those efforts are part of a "carefully considered" plan, the courts will provide no relief; the only restraint is the potential fallout with voters. A potent restraint, yet occasionally one that comes too late for those affected.
Perhaps the most disturbing aspect of the court's decision is that the burden almost always falls upon the poor, as by definition the less wealthy the neighborhood, the more it would benefit from an infusion of development capital. The problem is only made worse by the fact that the poorer or less influential the group, the less likely they are to have a voice in the planning process.
One area where this has occurred in Eugene is the ongoing attempt to erect a $15 million development downtown, including apartment and retail space, next door to the WOW Hall, a longtime music and community venue. Though the development threatens the WOW Hall's past and planned use, its members were not involved in the planning process for the new building. Since becoming involved, however, the WOW Hall's membership has gotten some perks, including $50,000 for sound dampening.
None of this is to suggest that city leaders, whether in New London or Eugene, act in bad faith when attempting to attract large-scale investment by smoothing the way through planned development or tax breaks or any of the myriad other ways in which governments strive to attract and retain businesses in their area. Nevertheless, large public subsidies of any kind often backfire, and history is littered with examples of failed attempts to attract businesses by shoving the less fortunate to the side.
The paradigmatic example is the decision by the city of Detroit to evict the residents of a predominantly immigrant neighborhood so that General Motors could build an automobile factory on the site. The plant was never built, yet that decision only came after the neighborhood was destroyed, providing a perfect example of the ruthless game that any city is entering when it attempts to attract capital.
In Eugene, as across many of the Western states, the pressure for development over recent years has been in another direction than condemning urban land. Most often, the City of Eugene and developers interested in devising projects have looked to expand into new areas not yet built up. Eugene's enterprise zone, a special tax status area designed to encourage manufacturing growth, is stretched across largely undeveloped areas of west Eugene. The Korean computer chip manufacturer Hynix, who has established a factory in the enterprise zone, was lured to Eugene with some hefty tax incentives.
Despite the presence of undeveloped land within the UGB, developers and property owners continually exert pressure to expand the UGB, suggesting it artificially increases property values within its boundaries. As Springfield Mayor Sid Leiken cast the issue, "[a]n inadequate supply of industrial land most likely means plants will be located in other regions or even in other states. For the commercial market, some older areas may see redevelopment — but typically, opportunities are lost to inflated prices."
While pressure on the UGB does not have the same effect as condemnation of existing property, it does raise costs on existing property owners, who foot the bill through higher taxes to subsidize the extension of city services to developing areas. In the case of Hynix, while the company paid Eugene $26.5 million in taxes, the city provided $51.2 million in property tax breaks, as well as millions more in road, water, and sewer improvements. Opponents of big box developments frequently cite estimates of these hidden costs, including traffic congestion costs, property damage, productivity costs, and air pollution. Redevelopment of urban spaces, they argue, saves many of these costs, because urban areas are designed to handle such increased use.
Balancing the costs between different types of development is never easy, and while Kelo opened up new possibilities to local governments for encouraging development, it also opened up a new set of difficult choices that rarely have a satisfactory answer. Whatever the ultimate impact of the Kelo decision on Eugene, it serves as a sharp reminder that land use planning across Oregon (and the rest of the country) is only going to become more contentious, not just between rural and urban development, but of the nature of how development in either area proceeds.
David Skillman and Christopher Ledford are both third-year law students at UO.