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Domestic Legal Terminology
Affidavit – A written statement made voluntarily, made under oath and sworn to before a notary public or someone authorized to take oaths (like a County Clerk).
Amicus Curiae – Latin for "friend of the court," an organization or group of individuals permitted by a court to participate in a case although they are not one of the litigants. The typical role of an Amicus is to file a brief that adds a perspective not otherwise before the Court. For example, CRR might file an amicus brief in a privacy case to explain how the decision in that case would impact abortion rights, even though the case does not involve abortion.
Appeal (v.) – A request to a higher court to review the decision of a lower court based on the “record” (see below) that was presented in the lower court. A party has a right to appeal to one appellate court. No new evidence is admitted on appeal. The appellant must usually file a “notice of appeal,” and then a brief making his or her arguments about why the lower court’s decision was incorrect. The other party (respondent or appellee) usually files a responsive brief countering these arguments. The appellant then can counter that response with a final (“reply”) brief. Argument is often presented orally to the appeals court (though not necessarily), which may affirm the original ruling, reverse it, send it back to the trial court, or reverse in part and affirm in part.
Appeal (n.) – The name for the process of appealing, as in "she has filed an appeal."
Appellant – The party who appeals a trial court decision it has lost Appellee - The name used for the party who has won at the trial court level, when the loser, (appellant) has appealed the decision to a higher court.
“As-applied” Challenge – There is much academic dispute about the difference between an “as-applied” and a “facial” challenge to a law. In its simplest terms, though, an “as applied” challenge is a challenge to a particular application or applications of a law or policy, rather than a challenge to the law or policy itself. A law or policy could be constitutional “on its face,” i.e., based on a reading of the law or policy, but still may be applied unconstitutionally. For example, though Alabama has a parental involvement law that is constitutional “on its face”, because it has a judicial bypass procedure in the law, it may be unconstitutional “as applied,” because Alabama judges rarely grant judicial bypasses or do so in an inconsistent manner. As applied challenges are usually more difficult and fact-intensive cases.
Biased Counseling – As used in the context of our work, biased counseling is state-mandated information that is intended to discourage a woman from choosing abortion and that is often irrelevant, unnecessary, misleading, or medically inappropriate. Statutes mandating biased counseling often are accompanied by delay periods of 24 or 48 hours and often require that the information be given by a physician, not simply a trained counselor, nurse, or other health practitioner. Biased counseling and mandatory delay requirements serve no actual health purpose and are intended only to discourage abortion as an option.
Cert. Petition or Petition for a Writ of Certiorari – A party who wants the U.S. Supreme Court to review a decision of a federal court or of a state Supreme Court must file a "petition for a writ of certiorari.” While parties in federal court have a right to have their appeal heard by one of the United States Courts of Appeals (also known as “Circuit Courts”), parties have no similar right to be heard by the U.S. Supreme Court. The Court chooses the cases it wants to hear by either granting or denying the “cert. petition.”
Complaint – The first document filed with the court by a person or entity claiming legal rights against another. The party filing the complaint is usually called the plaintiff and the party against whom the complaint is filed is called the defendant.
Crisis Pregnancy Center (CPC) – Throughout the United States (and all over the Internet), antiabortion groups have set up "crisis pregnancy centers." These centers follow a format that is deliberately designed to misinform and mislead young women. Going by the names such as Crisis Pregnancy Center, Pregnancy Aid, Birth Right, Open Door, or Pregnancy Counseling Center, these groups want to be a woman's first contact when she thinks she might be pregnant, so they can talk her out of considering abortion. Antiabortion pregnancy centers are listed in the yellow pages under "abortion alternatives" and they do not provide abortion. Many offer free pregnancy tests but do not have any medical staff on site, no doctors, no nurses, no nurse practitioners. Most antiabortion centers will not give out information by phone, they insist you come into their office. Many women have reported waiting up to an hour for the results of a pregnancy test and being forced to watch antiabortion videos while they wait surrounded by antiabortion propaganda. Many of these centers are operated by churches or religious organizations.
Deposition – The taking and recording of testimony of a witness under oath, by the opposing party, before a court reporter in a place away from the courtroom before trial.
Discovery – The efforts of a party to a lawsuit and its attorneys to “discover” information before trial through depositions of parties and potential witnesses, written demands for production of documents, interrogatories (questions and answers written under oath), requests for admissions.
Emergency Contraceptive (EC) – Sometimes called the “morning after pill,” EC prevents pregnancy after unprotected sex via a course of hormonal contraceptive pills taken in one- or two-dose regimens. Note the difference between medical abortion, which ends an already established pregnancy, and emergency contraception, which prevents pregnancy. EC is most effective if taken within 24 hours after unprotected sex; however, it can be effective for up to five days.
En Banc – Fr. "by the full court" "in the bench" or "full bench." When all the members of an appellate court hear an argument, they are sitting en banc. Refers to court sessions with the entire membership of a court participating rather than the usual quorum. U.S. courts of appeals usually sit in panels of three judges, but may expand to a larger number in certain cases. They are then said to be sitting en banc.
Enjoin (v.) – For a court to order that someone either do a specific act, cease a course of conduct or stop doing a certain act. The resulting order is called an injunction.
Expert Witness – A person who is a specialist in a subject who may present her/his expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of her/his expertise, training and special knowledge.
Facial Challenge – As noted above in the discussion of “as-applied challenge,” there is much academic dispute about the difference between an “as-applied” and a “facial” challenge to a law. But in its simplest terms, a “facial challenge” is a challenge in which a plaintiff asks a court to strike down a law in its entirety claiming that the law as it is written “on its face” is manifestly unconstitutional. This is in contrast to an “as applied” challenge, see above.
FACE – Freedom of Access to Clinic Entrances Act. Passed by Congress, it imposes criminal and civil penalties on anyone who uses force or the threat of force to obstruct, intimidate or interfere with someone who is providing or receiving reproductive health services.
Injunction – An order of a court that most commonly requires that an entity stop doing something and refrain from doing that thing in the future and/or, more rarely, demands that the entity take some particular action.
Interrogatories – A set of written questions to a party to a lawsuit asked by the opposing party as part of the pre-trial discovery process.
Judgment – The final decision by a court in a lawsuit, criminal prosecution, or appeal from a lower court's judgment.
Judicial Bypass/Waiver – A judicial authorization for an abortion, which allows minors to “bypass” forced parental involvement laws.
Mandatory Delay – As used in our work, “mandatory delay” refers to a requirement that a woman delay her abortion a certain number of hours or days after receiving or being offered state-mandated information (biased counseling) designed to discourage abortion. Mandatory delays and biased information requirements serve no actual health purpose and are intended only to discourage abortion as an option.
Medical Abortion – Medical abortion is a safe and effective non-surgical method of terminating early pregnancy using certain medications taken orally or through injections. There are currently two methods of medical abortion: mifepristone, formerly known as RU-486, and methotrexate. Both drugs must be used in combination with misoprostol in order to stimulate uterine contractions, which aids in expelling the fertilized egg. Note the difference between medical abortion, which ends an already established pregnancy, and emergency contraception, which prevents pregnancy.
Merits – Referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome. Example: An attorney is two days late in filing a set of legal points and authorities in opposition to a motion to dismiss. Rather than dismiss the case based on this technical procedural deficiency, the judge considers the case "on the merits" as if this mistake had not occurred.
Motion – A formal request made to a judge for an order or judgment.
Motion to Compel – A request that the judge order the other side to answer discovery. Order - Every direction or mandate of a judge or a court which is not a judgment or legal opinion (although both may include an order) directing that something be done or that there is prohibition against some act.
Parental Involvement Laws – As used in our work, this term refers to laws requiring young women to notify or obtain the consent of one or both parents in order to obtain an abortion.
Permanent Injunction – A final order of a court that a person or entity refrain from certain activities permanently or take certain actions until completed. A permanent injunction is distinguished from a “preliminary” injunction which the court issues pending the outcome of a lawsuit or petition asking for the “permanent” injunction.
Plurality Opinion – When no single opinion in a case in an appellate court is supported by a majority of the Justices, the opinion in support of the Judgment that has the most votes is called the “plurality opinion.”
Preliminary Injunction – An injunction (see above), issued by a court in the early stages of a lawsuit, maintaining the status quo until the court makes a final ruling on the merits of a lawsuit. In order for the preliminary injunction to issue, the plaintiff must make a showing that, among other things, without the injunction the plaintiff will suffer irreparable injury, and that s/he has a likelihood of success on the merits.
Refusal Clause – Sometimes referred to as “conscience clauses,” a refusal clause allows entities or individuals that can demonstrate a religious objection to providing some type of service or medication—in our work, either contraceptives or provision of abortion—may escape a requirements to do so.
Standing – The right to file a lawsuit. A plaintiff must have “standing” to sue. In the simplest of terms, this means that the plaintiff has suffered actual injury, is alleging that the defendant is the “cause” of the injury, and is asserting a claim and request for relief that will “redress” the injury. Stay - A court-ordered suspension of a court’s judgment, usually granted pending appeal of the judgment itself.
Strict Scrutiny– Refers to the highest degree of constitutional protection that is applied to restrictions on “fundamental rights,” like the right to free speech. When a law or policy is subjected to “strict scrutiny,” the state must establish that the law or policy is narrowly tailored to serve a compelling state interest, the most difficult test to meet. Roe v. Wade held that restrictions on the right to choose abortion were subjected to strict scrutiny. But the Supreme Court abandoned the strict scrutiny standard for the right to choose in Planned Parenthood v. Casey.
Summary Judgment – When a party establishes through submission of sworn statements and/or admissions of the opponent, that there are no genuine issues of material fact that are in dispute and that the party is entitled to judgment as a “matter of law”, the court will grant “summary judgment,” avoiding a trial on the legal issues decided. A summary judgment is based upon a motion by one of the parties that contends that all necessary factual issues are settled or so one-sided they need not be tried. The motion is supported by declarations under oath, excerpts from depositions which are under oath, admissions of fact and other discovery, as well as a legal argument (points and authorities), that argue that there are no triable issues of fact and that the settled facts require a summary judgment for the moving party. The summary judgment process is designed to eliminate the need to try factual issues that are already settled.
Temporary Restraining Order – A temporary restraining order (TRO) is issued for the same reasons as a preliminary injunction, i.e., to maintain the status quo where the party requesting the TRO is likely to succeed on the merits. However, TROs can be granted without notice to the opposing party and last for a short period of time, usually 15 days at the most.
TRAP – Targeted Regulation of Abortion Providers. TRAP laws attempt to regulate the medical practices or facilities of doctors who provide abortions by imposing burdensome requirements that are different and more stringent than regulations applied to comparable medical practices. Regulations can range from the width of doorways to hourly air exchange rates.
Undue Burden – The standard of judicial scrutiny—weaker than strict scrutiny—applied to restrictions on abortion, established in Planned Parenthood v. Casey, and which opened the door to numerous onerous restrictions, such as waiting periods that serve no medical purposes and are only intended to dissuade women from exercising their right to choose abortion. To establish that a regulation of abortion constitutes an “undue burden,” and is therefore unconstitutional, plaintiffs must establish that the regulation places a substantial obstacle in the path of women seeking abortions.
International Legal Terminology
Admissibility – The term used to describe the official decision of an international or regional human rights body to accept or decline to hear a case that has been submitted to it. This decision does not address the case on the merits. Rather, the body usually examines whether appropriate domestic legal remedies have been exhausted (see Exhaustion of Domestic Remedies, below) and whether other jurisdictional thresholds have been met.
African Charter on Human and Peoples’ Rights (1981) – International human rights treaty of the African Union. Primary enforcement mechanisms are the African Commission on Human and People’s Rights and the African Court. Ratified by 53 members of the African Union.
African Court of Human Rights – African Court on Human and Peoples’ Rights: A newly formed court constituted under the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (1998) which entered into force in January 2004 and is intended to compliment the African Commission on Human and People’s Rights. The Court has a mandate to receive individual complaints when the state in question has accepted its competency to hear such complaints, as well as to issue advisory opinions in certain circumstances.
American Convention on Human Rights (1969) – International human rights treaty signed at the Organization of American States. The first binding instrument in the inter- American system on human rights. Compliance monitored by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Ratified by 25 members of the Organization of the American States. The United States has signed, but not ratified this treaty.
Beijing Conference – United Nations Fourth World Conference on Women.
Beijing Declaration and Platform for Action – Consensus document adopted by 189 nations participating in the Beijing Conference. Important because it reinforced and extended further positive language in the Cairo Programme.
Cairo Conference – The United Nations International Conference on Population and Development (ICPD) was held from 5-13 September 1994 in Cairo, Egypt. During this two week period world leaders, high ranking officials, representatives of non- governmental organizations and United Nations agencies gathered to agree on a Programme of Action.
Cairo Programme of Action – Programme of Action of the United Nations International Conference on Population and Development (ICPD): Consensus document adopted by 179 nations participating in the International Conference on Population and Development. First inter-governmental agreement to explicitly define “reproductive rights”.
Comparative Law – The study of the differences and similarities between the legal standards (constitutional, legislative, jurisprudential, regulatory or customary) of several countries or legal systems.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979) – International treaty codifying states’ duties to eliminate discrimination against women. Has provisions related to reproductive health and rights issues. Ratified by 167 countries. The U.S. has signed, but not ratified, CEDAW. CEDAW Committee – UN Treaty Monitoring Body (see below) charged with monitoring states, parties or implementation of CEDAW. States that have ratified CEDAW report to the Committee every four years.
Convention on the Rights of the Child (1989) – International treaty upholding the human rights of children. It is the most widely ratified treaty in the world. Ratified by 195 countries. The U.S. has signed, but not ratified, this treaty: The U.S. is the only country other than Somalia that has not ratified it.
Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (1984) – Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984): The Convention against Torture entered into force in 1987. It defines torture and requires states parties to take legislative, administrative, judicial and other measures to combat torture in all territories under its jurisdiction, barring war and conflict as a justification for torture at any time. The Treaty Monitoring Body formed pursuant to the Convention to monitor states parties’ compliance is the Committee against Torture. Ratified by 138 countries. The U.S. has both signed and ratified the Convention.
Council of Europe – The European human rights system, of which 44 European states are members. Not to be confused with the European Union, the primarily economic regional body of Europe of which 25 countries of Europe are member states. All members of the EU are members of the Council of Europe.
Customary Law / Customary International Law – When there is a very consistent pattern among nations on a particular normative issue it is called customary international law or a customary international norm, and it attains the force of international law (for example, that countries should outlaw executing mentally incompetent people or prohibit official torture.) A written document or treaty does not have to exist on the subject matter for a norm to become customary law.
Economic, Social and Cultural Rights Committee – UN treaty monitoring body that Monitors states’ compliance with the ICESCR (Covenant on Economic, Social and Cultural Rights). States that have ratified the ICESCR report to this body every five years.
“European Convention on Human Rights” (1950) – European Convention for the Protection of Human Rights and Fundamental Freedoms. European treaty that codified the 1948 Universal Declaration on Human Rights. Basis for the Council of Europe and the European human rights system which is widely regarded as the strongest human rights system due to the wide accession to the treaty and compliance with its terms. Primary enforcement mechanism of the Convention is the European Court of Human Rights. Ratified by 45 countries of the Council of Europe.
European Court of Human Rights (ECHR) – The current incarnation of the European Court of Human Rights was instituted on November 1, 1998, as a means to systematize the hearing of human rights complaints from Council of Europe member states. The court's mission is to enforce the European Convention on Human Rights.
Exhaustion of Domestic Remedies – The requirement in international human rights law that an aggrieved party must first exhaust all available legal remedies at the national level before applying for remedies to an international or regional body.
Fact-finding – A methodology employed to expose human rights violations by extensive investigation and interviewing of concerned officials and alleged victims, seeking accountability from responsible parties, identifying and securing a remedy for those whose rights have been violated, and helping to develop an effective advocacy strategy. Fact-finding methodology is an internationally accepted form of documenting human rights violations.
Human Rights Committee – UN treaty monitoring body charged with monitoring states’ compliance with the International Covenant on Civil and Political Rights (ICCPR). States that have ratified the ICCPR report to this body every five years.
Human Rights Law – Body of laws, both domestic and international, intended to promote and protect human rights. Based on the principle that states have an obligation to respect the human rights of people within their territory, and that other nation states and the international community have the right and the responsibility to ensure that this obligation is observed.
International Covenant on Civil and Political Rights (ICCPR) (1966) – International treaty protecting individuals’ civil and political human rights. Ratified by 152 countries. The U.S. has both signed and ratified the ICCPR.
International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966) – This treaty, together with the Universal Declaration of Human Rights and the international Covenant on Civil and Political Rights, make up the International Bill of Human Rights. In accordance with the Universal Declaration, the Covenants recognize that the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights. Ratified by 149 countries. The U.S. has signed, but not ratified, the treaty.
International Convention on the Elimination of All Forms of Racial Discrimination – International treaty upholding individuals’ human rights to be free of discrimination on the basis of race. Ratified by 169 countries. The U.S. has both signed and ratified the treaty.
ICPD Programme of Action – Consensus document adopted by nations participating in the International Conference on Population and Development. First explicit intergovernmental agreement that explicitly recognized reproductive rights and their basis in established human rights.
Inter-American Commissions on Human Rights (IACHR) – The IACHR is an autonomous organ of the Organization of American States (see below). Its mandate is found in the Charter of the OAS and the American Convention on Human Rights and relates to promoting the observance and defense of human rights. In particular, its seven independent members accept individual complaints pursuant to the American Convention on Human Rights, attempt to reach a friendly settlement and, failing that, may decide to bring a case to the Inter-American Court of Human Rights.
Inter-American Court on Human Rights – The Court also operates under the auspices of the OAS and derives its mandate from the American Convention on Human Rights. It began operating in 1979, following entry into force of the Convention and has seven independent judges. Among other things, the Court hears complaints against states prosecuted by the IACHR, which acts on behalf of complainants who have alleged violations of the Convention.
International Law – Body of legal rules and norms that are decided and enforced by nation states at the international level. Based on treaties, customary law and general principles of law.
Jurisprudence – Law developed by judicial or quasi-judicial bodies.
NGO – Non-governmental organization.
Norms (legal norms, international norms) – Legal standards, such as constitutional Provisions or legislation. “Hard norms” are binding international treaty provisions. “Soft norms” are the many interpretative and non-binding statements, for example, by treaty monitoring bodies, that can contribute to an understanding and greater compliance with reproductive rights.
Organization of American States – The OAS is an inter-governmental body composed of 35 countries in the Western Hemisphere, including the United States. All members must ratify the Charter of the Organization of American States. The OAS’ mandate is to strengthen cooperation and advance common interests, including democracy and human rights. It functions in a manner similar to the United Nations.
Protocol on the Rights of Women in Africa (200) – Protocol to the African Charter on Human and People’s Rights (see above) which guarantees a wide range of women’s civil and political rights as well as economic, social and cultural rights. The Protocol explicitly guarantees the right to health and reproductive rights of women.
Treaty Monitoring Bodies (TMBs) – United Nations committees which monitor governmental compliance with the major UN human rights treaties. While the TMBs are not judicial bodies, they influence governments by issuing specific observations about states’ progress and compliance with human rights obligations. The also issue General Recommendations which are not specific to any one country but which provide specific guidance on how states can better implement a provision or provisions of a treaty. In certain circumstances, some TMBs also have a mandate to decide government responsibility for individual complaints of violations.
United Nations International Conference on Population and Development – The United Nations International Conference on Population and Development (ICPD) was held from 5-13 September 1994 in Cairo, Egypt. During this two week period world leaders, high ranking officials, representatives of non-governmental organizations and United Nations agencies gathered to agree on a Programme of Action.
United Nations Fourth World Conference on Women – Global conference on women’s rights held in Beijing in 1995. Sometimes referred to as “FWCW” and “Beijing Conference.”
Universal Declaration of Human Rights (1948) – UN human rights instrument at the foundation of modern international human rights law. The UDHR is not a treaty. It was adopted as a U.N. General Assembly Resolution in 1948 and is now regarded as legally binding in all U.N. member states.