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Procedures of the Supreme Court of the United States
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The Supreme Court of the United States is the highest federal court in the United States and the only court specifically established by the Constitution of the United States, implemented in 1789.
This article is concerned with the process and procedures used by the modern court. For general discussion of the court's jurisdiction and composition, see Supreme Court of the United States; for discussion of the court's present and historical accommodations, see United States Supreme Court building; for discussion of the history of the court, see History of the Supreme Court of the United States.
Contents
1 Terms and sittings
2 The Court's authority to hear cases
2.1 Appellate jurisdiction
2.2 Original jurisdiction
3 Selection of cases
4 Hearing cases
4.1 Filing briefs
4.2 Oral arguments
5 Forming opinions
5.1 The conference: assignment of opinions
5.2 Circulating draft opinions and changing of views
5.2.1 Tied votes and lack of quorum
5.3 Announcement of opinions
6 Reporting and citation of cases
7 See also
8 Footnotes and references
9 External links
Terms and sittings[edit]
A term of the Supreme Court commences on the first Monday of each October, and continues until June or early July of the following year. Each term consists of alternating periods of approximately two weeks known as "sittings" and "recesses." Justices hear cases and deliver rulings during sittings; they discuss cases and write opinions during recesses.
The Court's authority to hear cases[edit]
Appellate jurisdiction[edit]
In nearly all of the cases heard by the Supreme Court, the Court exercises the appellate jurisdiction granted it by Article III of the Constitution. This authority permits the Court to review—and affirm or overturn—decisions made by lower courts and tribunals. Procedures for bringing cases before the Supreme Court have changed significantly over time. Today, cases are brought before the Supreme Court by one of several methods, of which the first two account for the overwhelming majority of cases decided:
By petition for a writ of certiorari, filed by a party to a case that has been decided by one of the United States courts of appeals or by the United States Court of Appeals for the Armed Forces.
By petition for writ of certiorari with respect to a decision of one of the territorial or state courts, after all state appeals have been exhausted, where an issue of federal constitutional or statutory law is in question. The writ is usually issued to a state supreme court (including high courts of the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa), but is occasionally issued to a state's intermediate appellate court for cases where the state supreme court denied certiorari or review and thereby refused to hear the appeal.
By petition for certiorari before judgment, which permits the Court to expedite a case pending before a United States court of appeals by accepting the case for review before the appellate court has decided it. However, Supreme Court Rule 11 provides that a case may be taken by the Court before judgment in a lower court "only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."
By appeal from certain decisions of United States district courts in certain cases involving redistricting of congressional or state legislative districts, or when specifically authorized in a particular statute.
By a certified question or proposition of law from one of the United States Courts of Appeals, meaning that the Court of Appeals requests the Supreme Court to instruct it on how to decide the case. This procedure was once common but is now rarely invoked; the last certificate accepted for review was in 1981.
By petition for an "extraordinary writ" such as mandamus, prohibition, or habeas corpus. These writs are rarely granted by the Supreme Court though they are more frequently granted by lower courts.
Original jurisdiction[edit]
Certain cases that have not been considered by a lower court may be heard by the Supreme Court in the first instance under what is termed original jurisdiction. The Supreme Court's authority in this respect is also derived from Article III of the Constitution, which states that the Supreme Court shall have original jurisdiction "in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party." The original jurisdiction of the Court is set forth in 28 U.S.C. § 1251. This statute provides further that, in the case of disputes between two or more states, the Supreme Court holds both original and exclusive jurisdiction and no lower court may hear such cases.
The number of original jurisdiction cases heard by the court is small; generally only one or two such cases are heard per term. Because the nine-member Supreme Court is not well-suited to conducting pretrial proceedings or trials, original jurisdiction cases accepted by the Court are typically referred to a well-qualified lawyer or lower-court judge to serve as special master, conduct the proceedings, and report recommendations to the Court. The Court then considers whether to accept the special master's report or whether to sustain any exceptions filed to the report.
Although jury trials are in theory possible in the Court's original jurisdiction cases, there has not been one since Georgia v. Brailsford in 1794.[1] In 1950, in the case United States v. Louisiana, the state of Louisiana moved for a jury trial, but the Court denied the motion, ruling that the suit was an equity action and not an action at law, and that therefore the Seventh Amendment guarantee of a jury trial did not apply. If a matter involving an action at law did come before the court, however, a jury would likely be empaneled and would hear the case alongside the justices of the Court.[2]
Selection of cases[edit]
Since the Judiciary Act of 1925 ("The Certiorari Act" in some texts), the majority of the Supreme Court's jurisdiction has been discretionary.[3] Each year, the court receives approximately 9,000–10,000 petitions for certiorari, of which less than 1% (approximately 80–100), are granted plenary review with oral arguments, and an additional 50 to 60 are disposed of without plenary review.[4][5]
The Court strictly enforces its requirements for the preparation and timely filing of certiorari petitions, in order to manage such a massive caseload. This occasionally results in harsh consequences, as Justice Thomas acknowledged in a 2007 opinion: "Just a few months ago, the Clerk, pursuant to this Court's Rule 13.2, refused to accept a petition for certiorari submitted by Ryan Heath Dickson because it had been filed one day late ... Dickson was executed on April 26, 2007, without any Member of this Court having even seen his petition for certiorari. The rejected certiorari petition was Dickson's first in this Court, and one can only speculate as to whether denial of that petition would have been a foregone conclusion."[6]
In theory, each Justice's clerks write a brief for the Justice outlining the questions presented, and offering a recommendation as to whether certiorari should be granted; in practice, most Justices (all of the current court, except Justices Alito and Gorsuch) have their clerks participate in the cert pool.[7][8][9]
During the Justices' regular conference, the Justices discuss the petitions, and grant certiorari in less than five percent of the cases filed. (During the 1980s and 1990s, the number of cases accepted and decided each term approached 150 per year; more recently, the number of cases granted has averaged well under 100 annually). Before each conference, the Chief Justice prepares a list of those petitions he believes have sufficient merit to warrant discussion. Any other Justice may also add a case to the "discuss list"; cases not designated for discussion by any Justice are automatically denied review. The Court or a Justice may also decide that a case be "re-listed" for discussion at a later conference; this occurs, for example, where the Court decides to request input from the Solicitor General of the United States on whether a petition should be granted.[10]
The votes of four Justices at Conference (see Rule of four) will suffice to grant certiorari and place the case on the court's calendar. If the Supreme Court grants certiorari (or the certified question or other extraordinary writ), then a briefing schedule is arranged for the parties to submit their briefs in favor of or against a particular form of relief. During this time, an individual or group having an interest in a case but not a party to the case may submit a motion to appear before the court as amicus curiae ("friend of the court"). Except for certain specific categories (such as lawyers for state and local governments) or where all parties to the case consent, it is in the Court's discretion whether such motions are granted.
The grant or denial of certiorari petitions by the Court are usually issued as one-sentence orders without explanation.
Cases that fall within the Court's original jurisdiction are initiated by filing a complaint directly with the Supreme Court, and normally are assigned to a special master appointed by the Court for the taking of evidence and making recommendations, after which the Court may accept briefs and hear oral arguments as in an appellate case.
Hearing cases[edit]
Filing briefs[edit]
Before oral arguments, the parties to a case file legal briefs outlining their arguments. An amicus curiae may also submit a brief in support of a particular outcome in the case if the Court grants it permission. Formal rules govern every aspect of these briefs; Chief Justice William Rehnquist described the rules thus:
The rules direct what information must be included in a brief, describe the size of paper and type of print, and limit the number of pages. Even the colors of the covers of the briefs are specified: the petitioner's brief must have a blue cover and the respondent's must have a red cover. The Court also often receives briefs from amici curiae (friends of the Court) in particular cases, and these must have a green cover. This color-coding comes in very handy when you have a stack of eight or ten briefs in a particular case and can locate the brief you want by its color without having to read the covers of each.[11]
Oral arguments[edit]
Thereafter, if the Court chooses to hold a hearing, each side has thirty minutes to present its case orally. In exceptional and controversial cases, however, the time limit may be extended. In the Court's early years, attorneys might argue a single case for hours or even days; but as the judicial workload increased, the time available for argument has been restricted. The late Chief Justice Rehnquist was noted for his especially strict enforcement of the argument time limits.
To file pleadings or to argue a case, an attorney must be a member of the bar of the Court. (The primary requirement for admission to the Bar is that the attorney must have been admitted to practice in the highest court of a state or territory for at least the past three years.) Justices are allowed to interrupt the attorney speaking in order to ask him or her questions, and particularly since the arrival of Justice Antonin Scalia in 1986, do so often.[12]
The Court began recording Oral Arguments in October 1955.[13] Beginning in October 2010, the Supreme Court began the practice of posting recordings and transcripts of the oral arguments made during the preceding week on Fridays on the Court's website.
In an interview for C-SPAN, former Justice Scalia, speaking for himself, noted that by the time the Justices hear oral arguments, having read the submissions by the parties and amici, it is "very rare, though not unheard of", for the discussion during the oral arguments to change his view of a case in which he has already made up his mind based on the submissions and his research about the case. However, he also made the point that it is "quite common" for him to go into Oral Arguments with his mind not made up yet, as the cases are usually very hard and difficult, and that in those situations a persuasive attorney can make the difference for him.[14]
Forming opinions[edit]
The conference: assignment of opinions[edit]
At the end of a week in which the Court has heard oral arguments, the Justices hold a conference to discuss the cases and vote on any new petitions of certiorari. The Justices discuss the points of law at issue in the cases. No clerks are permitted to be present, which would make it exceedingly difficult for a justice without a firm grasp of the matters at hand to participate.[15] At this conference, each justice—in order from most to least senior—states the basis on which he or she would decide the case, and a preliminary vote is taken.
Former Justice Scalia professed frustration that there is little substantive discussion,[16] while former Chief Justice Rehnquist wrote that this makes the conference more efficient.[17] The votes are tallied, and the responsibility for writing the opinion in the case is assigned to one of the justices; the most senior Justice voting in the majority (but always the Chief Justice if he is in the majority) makes the assignment, and can assign the responsibility to him- or herself.
Circulating draft opinions and changing of views[edit]
The justice writing the opinion for the court will produce and circulate a draft opinion to the other justices. Each justice's law clerks may be involved in this phase. In modern Supreme Court history only a few justices, such as former Justice Antonin Scalia, have regularly written their own first drafts.[18] Once the draft opinion has been reviewed, the remaining Justices may recommend changes to the opinion. Whether these changes are accommodated depends on the legal philosophy of the drafters as well as on how strong a majority the opinion garnered at conference. A justice may instead simply join the opinion at that point without comment.
Votes at conference are preliminary; while opinions are being circulated, it is not unheard of for a justice to change sides. A justice may be swayed by the persuasiveness (or lack thereof) of the opinion or dissent, or as a result of reflection and discussion on the points of law at issue.
The evolution of the justices' views during the circulation of draft opinions can change the outcome of the case; an opinion that begins as a majority opinion can become a dissenting opinion, and vice versa. At the conference for Planned Parenthood v. Casey, Justice Kennedy is said to have initially voted with Chief Justice Rehnquist, but then changed his mind, feeling unable to join Rehnquist's draft opinion.[19] While working for the Justice Department, present-day Chief Justice John Roberts—a former Rehnquist law clerk—wrote an analysis of Wallace v. Jaffree[20] in which he indicated his belief (based on the length and structure) that Rehnquist's dissent had started out as an opinion for the court, but lost its majority; similar speculation is often heard of Justice O'Connor's dissent in Kelo v. New London.[21] Justice Kennedy is known within the Court for changing his mind subsequent to the conference, and Justice Thomas is known for having the tendency to lose a majority.[22] Justices may change sides at any time prior to the handing down of the Court's opinion. Generally, the Court's decision is the opinion which a majority (five or more) of justices have joined. In rare instances, the Court will issue a plurality opinion in which four or fewer Justices agree on one opinion, but the others are so fractured that they cannot agree on a position. In this circumstance, in order to determine what the decision is lawyers and judges will analyze the opinions to determine on which points a majority agrees. An example of a case decided by a plurality opinion is Hamdi v. Rumsfeld.
A justice voting with the majority may write a concurring opinion; this is an opinion where the justice agrees with the majority holding itself, but where he or she wishes to express views on the legal elements of the case that are not encompassed in the majority opinion. Justices who do not agree with the decision made by the majority may also submit dissenting opinions, which may give alternative legal viewpoints. Dissenting opinions carry no legal weight or precedent, but they can set the argument for future cases. John Marshall Harlan's dissent in Plessy v. Ferguson set down for the majority opinion later in Brown v. Board of Education.
After granting a writ of certiorari and accepting a case for review, the justices may decide against further review of the case. For example, the Court may feel the case presented during oral arguments did not present the constitutional issues in a clear-cut way, and that adjudication of these issues is better deferred until a suitable case comes before the court. In this event the writ of certiorari is "dismissed as improvidently granted" (DIG)—saying, in effect that the Court should not have accepted the case. As with the granting or denial of cert, this dismissal is customarily made using a simple per curiam decision without explanation.[23]
Customarily, justices who were not seated at the time oral arguments were heard by the Supreme Court do not participate in the formulation of an opinion. Likewise, a justice leaving the Court prior to the handing down of an opinion does not take part in the Court's opinion. Should the composition of the Court materially affect the outcome of a pending case, the justices will likely elect to reschedule the case for rehearing.
Tied votes and lack of quorum[edit]
If not all of the nine justices vote on a case, or the Court has a vacancy, then a tied vote is possible. If this occurs, then the decision of the court below is affirmed, but the case is not considered to be binding precedent. The effect is a return to the status quo ante. No opinions (or voting alignments) are issued in such a case, only the one-sentence announcement that "[t]he judgment is affirmed by an equally divided Court." Omega S.A. v. Costco Wholesale Corp. is an example of such a case. The court tries to avoid such rulings when possible: After the retirement of Justice O'Connor in 2006 three cases would have ended with a tie. All cases were reargued to allow the newly appointed Samuel Alito to cast a decisive vote.
A quorum of justices to hear and decide a case is six. If, through recusals or vacancies, fewer than six justices can participate in a case, and a majority of qualified justices determines that the case cannot be heard in the next term, then the decision of the court below is affirmed as if the Court had been equally divided on the case. An exception exists when this situation arises in one of the now-rare cases brought directly to the Supreme Court on appeal from a United States District Court; in this situation, the case is referred to the U.S. Court of Appeals for the corresponding circuit for a final decision there by either the Court of Appeals sitting en banc, or a panel consisting of the three most senior active circuit judges.[24]
Announcement of opinions[edit]
Throughout the term, but mostly during the last months of the term—May, June, and, if necessary, July—the Court announces its opinions. The decision of the Court is subsequently published, first as a slip opinion, and subsequently in the United States Reports. In recent years, opinions have been available on the Supreme Court's website and other legal websites on the morning they are announced. Since recording devices have been banned inside the courtroom, the fastest way for decisions of landmark cases to reach the press is through the Running of the Interns.[25]
The opinion of the Court is usually signed by the author; occasionally, the Supreme Court may issue an unsigned opinion per curiam. The practice of issuing a single opinion of the Court was initiated during the tenure of Chief Justice John Marshall during the early 19th century. This custom replaced the previous practice under which each Justice, whether in the majority or the minority, issued a separate opinion. The older practice is still followed by appellate courts in many common law jurisdictions outside the United States.
Reporting and citation of cases[edit]
For more specific details on how cases are cited, see case citation.
Supreme Court decisions are typically cited as in the following example: "Roe v. Wade, 410 U.S. 113 (1973)." The court citation consists of the names of the opposing parties; the volume number; "U.S." (signifying United States Reports, the official reporter of Supreme Court decisions); the page number on which the decision begins; and the year in which the case was decided. The names of the opposing parties are listed in the format "Petitioner v. Respondent" or "Appellant v. Appellee." The Reporter of Decisions is responsible for publication of the Court's rulings. Two other widely used citation formats exist: the Supreme Court Reporter and the Lawyers' Edition, corresponding to two privately published collections of decisions. Citations to cases in the Supreme Court Reporter would be structured as follows: Snowden v. Hughes, 64 S. Ct. 397 (1944). Citations to cases in the Lawyers' Edition would be as follows: Snowden v. Hughes, 88 L. Ed. 497 (1944). Judicial opinions often use the citation from all three sources (the United States Reports, Supreme Court Reporter, and Lawyers' Edition), as seen here: Martin v. Texas, 200 U.S. 316, 26 S. Ct. 338, 50 L. Ed. 497 (1906). Since the 1930s, prior to publication of the decisions in these reporters, they are available from the United States Law Week (U.S.L.W.). In more recent years, opinions have been available electronically soon after they appeared on commercial sites such as Lexis or Westlaw, on Internet sites such as FindLaw and on the Court's own website.[26]
The Reporter of Decisions is the court official responsible for the publication of the Court's opinions and orders. The current Reporter of Decisions is Christine Luchok Fallon.
Decisions of the Supreme Court are precedents that bind all lower courts, both federal and state. The Supreme Court generally respects its own precedents, but has in some cases overturned them.
See also[edit]
Supreme Court Case Selections Act
Footnotes and references[edit]
Jump up ^ Georgia v. Brailsford, Powell & Hopton , 3 U.S. 1 (1794).
Jump up ^ United States v. Louisiana , 399 U.S. 699 (1950).
Jump up ^ Scalia, Antonin. "Originalism: The Lesser Evil". University of Cincinnati Law Review. 57: 849, 850. Archived from the original on February 21, 2006; Rehnquist, William H. (September 27, 2001). Remarks by Chief Justice William H. Rehnquist (Speech). Lecture at the Faculty of Law of the University of Guanajuato, Mexico.
Jump up ^ See, e.g., Lazarus, Edward (June 14, 1998). "Closed Chambers". Booknotes (Interview). Interviewed by Brian Lamb. C-SPAN.
Jump up ^ "The Justices' Caseload" (PDF). Supreme Court of the United States.
Jump up ^ Bowles v. Russell , 551 U.S. 205 (2007).
Jump up ^ Mauro, Tony (October 21, 2005). "Roberts Dips Toe Into Cert Pool". Law.com. Regarding the picking of cases, see generally, Rehnquist, William H. (2001). The Supreme Court (2nd ed.). New York: Knopf. pp. 224–238. ISBN 9780375409431.
Jump up ^ Liptak, Adam (September 25, 2008). "A Second Justice Opts Out of a Longtime Custom: The 'Cert. Pool'". The New York Times. Retrieved October 17, 2008.
Jump up ^ Liptak, Adam (May 1, 2017). "Gorsuch, in sign of independence, is out of Supreme Court's clerical pool". New York Times. Retrieved May 2, 2017.
Jump up ^ Thompson, David C.; Wachtell, Melanie F. (2009). "An Empirical Analysis of Supreme Court Certiorari Petition Procedures". George Mason University Law Review. 16 (2): 237, 241. SSRN 1377522  .
Jump up ^ Rehnquist, William H. (September 27, 2001). Remarks by Chief Justice William H. Rehnquist (Speech). Lecture at the Faculty of Law of the University of Guanajuato, Mexico; cf. "Part VII. Practice and Procedure. Rule 33. Document Preparation: Booklet Format; 8 1/2- by 11-Inch Paper Format". Rules of the Supreme Court of the United States. Supreme Court of the United States. April 19, 2013 – via Legal Information Institute, Cornell University.
Jump up ^ Talbot, Margaret (March 28, 2005). "Supreme Confidence: The Jurisprudence of Justice Antonin Scalia". The New Yorker. Archived from the original on September 3, 2005 – via New America Foundation. In his early years on the Court, Scalia's exuberant questioning was not well received by his colleagues ... In Scalia's first oral argument he asked so many questions that Powell whispered, 'Do you think he knows that the rest of us are here?' The other Justices have since caught up with Scalia. Now all of them—with the exception of Clarence Thomas—are garrulous Linder, Doug. "Justices Brennan & Scalia Debate Creation-Science". On a bench lined with solemn gray figures who often sat as silently as pigeons on a railing, Scalia stood out like a talking parrot.
Jump up ^ "About the Oyez Project". Oyez Project. Retrieved January 24, 2011.
Jump up ^ Scalia, Antonin (June 19, 2009). "Justice Antonin Scalia" (PDF) (Interview). Interviewed by Susan Swain. C-SPAN. Retrieved November 6, 2010. [I]t is probably quite rare, although not unheard of, that oral argument will change my mind. But it is quite common that I go in with my mind not made up. I mean a lot of these cases are very close, and you go in on the knife's edge. Persuasive counsel can make the difference. There are things you can do with oral argument that cannot be done in a brief. You can convey the relative importance of your various points.
Jump up ^ Rehnquist, William H. (2001). The Supreme Court (2nd ed.). New York: Knopf. p. 253. ISBN 9780375409431.
Jump up ^ Lazarus, Edward (2005). Closed Chambers. New York: Penguin. p. 285. ISBN 9780143035275. to call our discussion of a case a conference is really something of a misnomer. It's much more a statement of the views of each of the nine justices.
Jump up ^ Rehnquist, William H. (2001). The Supreme Court (2nd ed.). New York: Knopf. pp. 254–58. ISBN 9780375409431.
Jump up ^ Lazarus, Edward (2005). Closed Chambers. New York: Penguin. p. 271. ISBN 9780143035275.
Jump up ^ See, e.g., Zimmerman, Carol (March 18, 2004). "Justice Blackmun's Papers Reveal Near Overturn of Roe". Catholic Herald. Catholic News Service. Archived from the original on April 19, 2004.
Jump up ^ Roberts, memo to Fred F. Fielding, June 4, 1985.
Jump up ^ See, e.g., Claeys, Eric (June 24, 2005). "Did O'Connor Lose the Majority?". SCOTUSblog. Archived from the original on August 22, 2006.
Jump up ^ See Tushnet, Mark V. (2005). A Court Divided: The Rehnquist Court and the Future of Constitutional Law. New York: Norton. ISBN 9780393058680.
Jump up ^ Savage, David G. (January 2002). "Adarand Didn't Add Up: Lawyers Now Wonder Which Affirmative Action Case Court Will Take". ABA Journal. American Bar Association. 88: 26. Retrieved January 5, 2013.
Jump up ^ U.S.C. Title 28, Section 1; U.S.C. Title 28, Section 2109.
Jump up ^ Kessler, Robert. "Why Aren't Cameras Allowed at the Supreme Court Again?". The Atlantic. Retrieved 24 March 2017.
Jump up ^ "Opinions". Supreme Court of the United States. Retrieved 25 October 2014.
External links[edit]
Court Rules from the U.S. Supreme Court website
2010 rules from the U.S. Supreme Court website
2013 rules from the U.S. Supreme Court website
2013 rule revisions from the U.S. Supreme Court website (with "clerk comments" that clarify what's changing for 2013 and why)
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Two-child policy
From Wikipedia, the free encyclopedia
Jump to: navigation, search
A two-child policy is a government-imposed limit of two children allowed per family or the payment of government subsidies only to the first two children. It has previously been used in Vietnam. In British Hong Kong in the 1970s, citizens were also highly encouraged to have two children as a limit (although it was not mandated by law), and it was used as part of the region's family planning strategies. Since 2016, it has been implemented in China.[1][2]
Contents
[hide]
1 China
2 Hong Kong
3 Iran
4 Singapore
5 United Kingdom
6 Vietnam
6.1 History
6.2 Administration
6.3 Current status
6.4 Effects of this policy
6.4.1 Reduction of the birthrate
6.4.2 Sex-based differences
6.5 Criticism
6.5.1 Inadequate contraceptives
6.5.2 Increased abortion
7 See also
8 References
9 Further reading
China[edit]
During the 1970s, Chinese citizens were encouraged to have only one child.[3] The ongoing Cultural Revolution and the strain it placed on the nation were large factors. During this time, the birth rate dropped from nearly 6 children per woman to just under 3.[4] (The colloquial term "births per woman" is usually formalized as the Total Fertility Rate (TFR), a technical term in demographic analysis meaning the average number of children that would be born to a woman over her lifetime if she were to experience the exact current age-specific fertility rates through her lifetime.)
As China's youngest generation (born under the one-child policy, which first became a requirement for most couples in 1979) came of age for formation of the next generation, a single child would be left with having to provide support for his or her two parents and four grandparents. In response to this issue, by 2009 all provinces allowed couples to have two children if both parents were only children themselves.[5] After a policy change of the Chinese government in late 2013, most Chinese provinces further relaxed the policy in 2014 by allowing families to have two children if one of the parents is an only child.[6][7][8]
Han Chinese living in rural areas were often permitted to have two children, as exceptions existed if the first child was a daughter.[9] Because of cases such as these, as well as urban couples who simply paid a fine (or "social maintenance fee") to have more children,[10] the overall fertility rate of mainland China is, in fact, closer to two children per family than to one child per family (1.8). In addition, since 2012, Han Chinese in southern Xinjiang were allowed to have two children. This, along with incentives and restrictions against higher Muslim Uyghur fertility, was seen as attempt to counter the threat of Uyghur separatism.[11]
On October 29, 2015, Xinhua reported the change in the existing law to a two-child policy citing a statement from the Communist Party of China.[12][13] The new policy allowing Chinese couples to have two children was proposed in order to help address the aging issue in China.[14] On December 27, 2015, the new law was passed in the session of the National People's Congress Standing Committee, which governs country's laws, effective from January 1, 2016.[15][16][17]
Hong Kong[edit]
In Hong Kong, the Two is Enough campaign in the 1970s encouraged people to have two or fewer children in each family, contributing to the reduced birth rate in the following decades (poster with actress Fung Bo Bo)
See also: Demographics of Hong Kong
In British Hong Kong, the Eugenics League was founded in 1936, which became The Family Planning Association of Hong Kong in 1950.[18] The organization provides family planning advice, sex education, and birth control services to the general public of Hong Kong. In the 1970s due to the rapidly rising population, it launched the "Two is Enough" campaign,[18] which reduced the general birth rate through educational means. The organization[19] founded the International Planned Parenthood Federation, with its counterparts in seven other countries.[19] The total fertility rate in Hong Kong is currently 1.04 children per woman, one of the lowest in the world. Although the "Two is Enough" campaign found widespread approval, it does not reflect current government policy in supporting families. Tax allowances of 100,000 HK$ per child can be claimed for up to 9 children.[20] Furthermore, parents who have fallen into hardship can apply for special assistance from the state. This is a means-tested financial benefit, which is not limited to a particular number of children either.[21]
Iran[edit]
Iranian authorities encouraged families in Iran not to have more than two children when conducting Family planning in Iran from early 1990s to late 2006. Iran's government "declared that Islam favored families with only two children", as one historian put it.[22] when the family planning program initiated where Iran's Health Ministry launched a nationwide campaign and introduced contraceptives - pills, condoms, IUDs, implants, tubal ligations, and vasectomies.[23] Starting in 2006, the government's population control policy changed when Ahmadinejad called for reversal of Iran's existing policy of "two children is enough"[24] and later in 2012 Ayatollah Khamenei also stated that Iran's contraceptive policy made sense 20 years ago, "but its continuation in later years was wrong ... Scientific and experts studies show that we will face population aging and reduction (in population) if the birth-control policy continues."[25]
Singapore[edit]
Main article: Population control in Singapore
In Singapore, the two-child policy until the 1980s was called "Stop at Two".
United Kingdom[edit]
In July 2007, the think tank Optimum Population Trust (now Population Matters) advocated what the Daily Mail described as a "'two-child' policy" to combat population increases and climate change in the United Kingdom. The article stated:
"According to the report, published by the Optimum Population Trust, Britain's high birth rate is a major factor in the current level of climate change, which can only be combated if families voluntarily limit the number of children they have."[26]
In October 2012, the Conservative Party's proposed policy of only paying child benefit for the first two children of unemployed parents has been described as a 'two-child policy',[27] and has been fronted by the Secretary of State for Work and Pensions and former leader of the Conservative Party Iain Duncan Smith.[28]
In April 2015, David Cameron denied any such plans to cut child benefits or tax credits. However, three months later, George Osborne, the then Finance Minister, announced that child tax credits would be limited to the first two children only. This was to come into force from the 2017/2018 financial year and apply to children born after that date only.[29]
The two-child policy took effect on 5 April 2017. One particular aspect of the new rules, termed the "rape clause", has caused controversy. Although the policy excludes all but the first two children from all available benefits, an exemption can be applied for if the conception of the third and any further children occurred as a result of the rape of the claimant. A woman wishing to claim this exemption must fill in an eight-page form:
"The form requires women wanting to be eligible for the exemption to sign a declaration saying they were raped or otherwise coerced into sex – and giving the child’s name. They must sign a declaration reading: 'I believe the non-consensual conception exemption applies to my child.' They must also sign another declaration that says: 'I confirm that I am not living with the other parent of this child.'"[30]
That the woman must thereby identify the child in question (which is thought to be assigned a tax code created for this exemption[31]), that first or second children conceived by rape do not count towards this exemption and that women who are still living with their abusers are not eligible are just some of the aspects of the rape clause that caused widespread condemnation. Ruth Graham, writing for Slate, summarises the issues surrounding this new policy thus:
"The policy and the exemption have received harsh criticism from a wide variety of sources since they were announced in 2015. One member of parliament called the exemption implementation 'inhumane and barbaric.' Feminists have pointed out the cuts disproportionately affect women. A coalition of the U.K.’s largest Christian denominations and Jewish groups pointed out that the policy discriminates against people whose religion compels them to have larger families. A United Nations committee on children’s rights asked the British government to explain the policy last year, because of concerns about women having to somehow prove they were raped."[32]
Vietnam[edit]
Vietnam has had a population policy for over 50 years. It was launched by the Vietnamese government in the early 1960s in North Vietnam and continues in a modified form today throughout united Vietnam.[33] The policy emphasizes the official family-size goal to be một hoặc hai con, which means "one or two children."[34]
In 2014 Vietnam had an estimated population of 92.5 million people, which represented 1.28% of the total world population.[35] Currently, the total fertility rate of Vietnam is 1.8 (births per woman),[36] which is below the replacement-level fertility of 2.1, the rate "at which a population exactly replaces itself from one generation to the next" according to the World Resources Institute.[37]
History[edit]
From 1954 to 1975, Vietnam was split into North and South Vietnam along the 17th parallel with separate governments and policies in each region. North Vietnam became the Democratic Republic of Vietnam and had a communist government, whereas South Vietnam became the Republic of Vietnam and was more aligned with the United States and other Western nations.[38] In 1963, North Vietnam began a policy advocating a two-or-three-child norm due to the sharp population increase of the largely poor and rural population.[34] Vietnam's family planning policy was developed before those of other countries, such as China and India, the government used a system of information, education, communication (IEC) campaign and publicly accessible contraceptives to curb the population.[39] After the reunification of North and South Vietnam in 1975 under the Communist Party, there was a governmental effort to extend the policies of the North to the rest of Vietnam, which extended into the next decade.[40] Though the government of the Republic of Vietnam adopted family planning in general as the official state policy, inadequate medical facilities prevented the policy from being effectively implemented.[41]
In 1982, the Vietnam government practiced various family planning measures, including the allowance of use of abortion and the creation of the National Committee for Population and Family Planning. After 1983, each family was required to limit the number of children to two. In 1985, the government increased incentives, such as contraceptives and abortion acceptors, and disincentives, such as penalties for violations in family planning.[41]
In 1986, the Party implemented the Renovation (Đổi Mới) Policy, which completely reversed the Communist Party economy to implement capitalistic market ideals. The aims of the Renovation Policy were to end Vietnam's economic isolation, increase competitiveness, and raise living standards.[42] In an attempt to effectively develop the population socioeconomically and increase the standard of living within the population, the Vietnam government emphasized the need to contain birth rates.[43] In 1988, Council of Ministers issued an in-depth family planning policy, adding additional restrictions beyond the previous restriction of keeping the maximum number of children per household to two.[44] The detailed one-or-two-child policy of Vietnam was established nine years after China's one-child policy was implemented, and elements of China's policy are reflected in Vietnam's, such as the emphasis on marrying later,[33] postponing childbearing age (22-years of age or older for women and 24-years of age or older for men),[44] and spacing out birth of children (3–5 years apart).[33][44] The state was required to supply free birth control devices (such as intrauterine loops, condoms, and birth control pills) and to provide facilities for individuals who are eligible for abortions.[44] Furthermore, if families did not comply with the two-child policy, they were required to pay high fees and were unable to move into urban centers.[44]
In 1993, the Vietnamese government issued the first formalization for the unified Vietnam of the one-to-two child policy as a mandatory national policy. The policy combined advertisements and education to promote a smaller family "so people may enjoy a plentiful and happy life."[45] The Vietnamese government explicitly linked the family planning policy with "historical and cultural traditions, value structures and development objectives," encouraging a collectivist mindset in which individuals honor the needs of the nation above their own.[43] The goal of the policy was to reduce the Vietnamese fertility rate to the replacement level of 2.1[37] by 2015, so that the country could have a stable population during mid-21st century. In 1997, the goal was accelerated to reach the replacement level by 2005, and the government subsequently integrated an increased use of abortion as a means to curb population growth.[46]
In 2003, the Standing Parliamentary Committee of the National Assembly issued the highest legislative document on population titled the Population Ordinance, which restructured the official family planning policy.[33] According to the ordinance, couples "shall have the right to decide on the time to have babies, the number of children and the duration between child births."[47] However, shortly after, the government implemented the National Strategy on Population 2001-2010, which again called for decreasing the fertility rate to the replacement level by 2005. This caused controversy as individuals protested the conflicting messages purported by the government in regards to their reproductive rights.[33] To address this confusion, the government issued Resolution 47 in 2005 which stated that "to sustain high economic growth, Viet Nam needs to pursue a population control policy until it has become an industrialized country." However at this time, the population had already reached the goal of having a total fertility rate below the replacement level.[33]
In 2009, the Population Ordinance was amended to again restrict the number of children to be one or two children, although individuals were allowed to decide the timing and spacing of their births.[48] The government is currently drafting a new Law on Population to replace the Population Ordinance in 2015. However, there is disagreement between policy makers and academics on what should be included in the law.[49]
Administration[edit]
The organizational structure of the two-child policy was housed under different governmental units since its conception in the 1960s. As the policy evolved from "Initiation in the 1960s-1970s; Maturity in the 1980s-1990s; and Legalization in the 2000s-2010s,"[33] the administration of the population policy also changed. From 1961-1983, the population program fell under the Population and Birth Control Unit. From 1984-2002, it was under the control of National Committee for Population and Family Planning. From 2003-2006, it was in the jurisdiction of the Viet Nam Commission for Population, Family, and Children. Since 2007, the population program has been under the General Office for Population and Family Planning.[33]
Although the policy was advocated on the national level, the central government did not utilize specific fines or incentives, instead delegating implementation responsibilities to local governments.[39] Each family was required to have at most two children, and local governments were responsible to decide the details of enforcement. Depending on the specific location, district governments charged fines ranging from 60 to 800 kilograms of paddy rice, equivalent to the worth of a month to a year's wages, for each additional child, and additionally, women who agreed to be sterilized were given bonuses of 120 to 400 kilograms of rice. Individuals who did not use contraceptives sometimes had their names announced over the intercom system of the village to shame them into using them, whereas individuals who did could be selected to win the Labor Medal for "good realization of the population-family planning program."[39] The government and large companies also regularly denied people who violated the policy of their salaries, promotions, and sometimes even their jobs.[39]
Current status[edit]
Currently, the effective population policy is the revised 2009 Population Ordinance which states that "each couple and individual has the right and responsibility to participate in the campaigns on population and family planning, reproductive health care: (i) decide time and birth spacing; (ii) have one or two children, exceptional cases to be determined by the Government."[48] Thus, individuals have control over the timing and spacing of the births of their children but are still restricted in the number of children they are allowed to have. Furthermore, later that year, Chief Executive Trương Tấn San stressed the need for continued diligence in population control and stated that the population of Vietnam should be 100 million people by 2020, and suggested that a new comprehensive Law on Population be introduced to the government by 2015.[33]
Effects of this policy[edit]
Reduction of the birthrate[edit]
The total fertility rate in Vietnam dropped from 5.6 in 1979 to 3.2 by 1993, suggesting the two-child policy was successful in containing the population growth.[50] According to one demographic model, the Bongaarts' model of components of fertility, high rates of contraceptive use and of induced abortion are plausible explanations for the decreased fertility rate. Furthermore, because of this policy, the population has fundamentally changed their ideas of the family. In 1988, the Inter-Censal Demographic and Health Survey found that parents wanted an average of 3.3 children, and in 1994, they found that the ideal number of children fell to 2.8.[50]
However, the reported findings differ depending on the fertility model utilized and on the particular research study cited. The United Nations Economic and Social Council for Asia and the Pacific found that the average number in household was 3.1 in 1998.[51] In another study conducted by the America-based non-profit, non-governmental organization Population Reference Bureau, the number found was lower at 2.3.[52] Another study, published in the Worldwide State of the Family in 1995 by Tran Xuan Nhi,[53] found a contrasting finding that the total fertility rate only dropped slightly and the size of nuclear families experienced only a slight change, dipping from 4.8 to 4.7 from 1989 to 1994.[51]
Sex-based differences[edit]
There is evidence that son preference exists in Vietnam.[54] Traditionally, men oversee and are responsible for household enterprises, managing agriculture, ancestral worship, and carrying on the family name.[55] However, although the desire for a son is seen in the Vietnamese family's fertility practices, the desire for more than one son is not.[55] Families with two daughters are twice as likely to have a third child than families with at least one son, presumably with the hopes that this one will be a boy.[55] Furthermore, women who do not have any sons are around 15% less likely to use contraceptives than families who have at least one.[54] There were also increased rates of "contraceptive failure" amongst couples who had a son, as families secretly removed an IUD to bypass the policy in hopes of having a son.[56] This is consistent with findings from other East Asian countries in which son preference corresponds with a demand for fewer children so that families will have at least one son to maintain the ancestral line.[54]
Despite the evidence for son preference, there is no clear evidence that Vietnam's sex ratio at birth is increasing, as seen in other East Asian countries, notably China, though evidence is conflicting depending on the source.[56] In fact, according to the Vietnamese census data for 1989 and 1999, the sex ratios of males to females at birth are actually decreasing.[56] On the other hand, some sources state that the impact of son preference varies by region of Vietnam. In the north, there is a strong relationship between sex bias in fertility decisions and number of male births, while in the south, this relationship is nonexistent.[55] However, mothers who pursue certain occupations, such as government cadres and farmers, are more likely to want a particular sex of child and have higher sex-ratio differences at birth. This reflects the pressure for government employees to adhere to the two-child limit, and the perceived necessity of males for manual labor in the farm.[56]
Criticism[edit]
Inadequate contraceptives[edit]
Although the policy states that "the state will supply, free of charge, birth control devices... to eligible persons who are cadres, manual workers, civil servants or members of the armed forces... and poor persons who register to practice family planning... The widespread sale of birth control devices will be permitted to facilitate their use by everybody that needs them,"[57] the only modern contraceptive readily available in Vietnam is the IUD.[58] However, many women choose not to use it due to the side effects, such as increased bleeding, back and abdominal pains, headache, and general weakness.[59] Thus, contraceptive use is low among women under the age of 25, and experts have speculated that "contraceptive use among young women might increase if temporary, easy-to-use methods, such as the pill and the condom, were more accessible. For the government to achieve its two-child policy, the survey committee recommends increased promotion of the commercial availability of the condom and the pill, and strengthening of the government family planning program."[58]
Increased abortion[edit]
Abortion rates in Vietnam are unusually high by international standards, with a total abortion rate of at least 2.5 abortions per woman.[60] Generally, the abortion rate for young age groups is higher than older age groups due to a limited awareness of contraceptive methods and availability. Individuals of lower educational levels also have higher abortion rates.[61] Vietnam also has some of the world's most liberal abortion laws, though the Vietnamese government is aiming to reduce the number of unwanted pregnancies and abortion-related difficulties.[62] Although sex-selective abortions were banned by the government in 2006,[62] there is evidence that suggests that son preference is associated with a higher likelihood of repeat abortions, as women with no sons were significantly less likely to have a repeat abortion compared to women with one son.[63]
There are multiple factors influencing Vietnam's high abortion rates. First, because women do not have access to contraceptive methods besides IUDs, whilst condoms remain expensive relative to average income, as a result many do not use effective birth control.[60] Women who have undergone multiple abortions used short-term methods of contraceptives, such as condoms and contraceptive pills, which are less effective than long-acting contraceptives to which many do not have access.[63] Secondly, due to the higher costs of raising a child in some geographic areas of Vietnam, abortions have become more acceptable.[60] Furthermore, the era of modernization and development of free-market reforms since the 1980s has led to a rise in premarital and unwanted pregnancy, and subsequently increased abortion services.[60] Additionally, the Vietnamese government has insufficient alternatives to abortion within the family planning purposes and a lack of post-abortion contraceptive dialogues for families.[62] Thus, experts have suggested providing more diverse, long-acting contraceptive alternatives and increasing counseling for families that have experienced an abortion as methods to decrease abortion in Vietnam.[63]
See also[edit]
One-child policy
Only child
Family planning
Pledge two or fewer (family limitation campaign)
Family planning in India – Authorities in India unsuccessfully attempted to implement a two-child policy.
References[edit]
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Jump up ^ Bennett, Asa (26 October 2015). "Tax credits: what are they, who claims them, and why is everyone so angry about the cuts?". London: The Telegraph. Retrieved 12 April 2017.
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Jump up ^ Rustin, Susanna (17 March 2017). "The ‘rape rule’ for tax credits tramples the rights of children it’s meant to protect". The Guardian. Retrieved 12 April 2017.
Jump up ^ Graham, Ruth (10 April 2017). "This Cruel New U.K. Policy Punishes Women for Having More Than Two Children 378 69 618". Slate. Retrieved 12 April 2017.
^ Jump up to: a b c d e f g h i Pham, Bang Nguyen; Hill, Peter S; Hall, Wayne; Rao, Chalapati. "The Evolution of Population Policy in Viet Nam". School of Population Health, University of Queensland. Retrieved 12 March 2015.
^ Jump up to: a b Goodkind, Daniel (March 1995). "Vietnam's One-or-Two-Child Policy in Action". Population and Development Review. 21 (1): 85–111. JSTOR 2137414. doi:10.2307/2137414.
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^ Jump up to: a b Searchinger, Tim; Hanson, Craig; Waite, Richard; Lipinski, Brian; Leeson, George; Harper, Sarah. "Achieving Replacement Level Fertility". World Resources Institute. World Resources Institute.
Jump up ^ Langguth, A.J. (March 12, 2002). Our Vietnam: The War 1954-1975. Simon & Schuster. p. 671. ISBN 0-7432-1231-2.
^ Jump up to: a b c d Knudsen, Lara (June 30, 2006). Reproductive Rights in a Global Context: South Africa, Uganda, Peru, Denmark, United States, Vietnam, Jordan (1 ed.). Vanderbilt University Press. pp. 139–168. ISBN 0-8265-1528-2.
Jump up ^ Allman, James; Vu, Qui Nhan; Nguyen, Minh Thang; Pham, Bich San (September 1991). "Fertility and Family Planning in Vietnam". Studies in Family Planning. 22 (5): 308–317. doi:10.2307/1966685.
^ Jump up to: a b "Viet Nam". United Nations. Retrieved 19 April 2015.
Jump up ^ Freeman, Donald (April 1996). "Doi Moi Policy and the Small-Enterprise Boom in Ho Chi Minh City, Vietnam". Geographical Review. 86 (2): 178–197. doi:10.2307/215955.
^ Jump up to: a b Bruun, Ole; Jacobsen, Michael (2 September 2000). Human Rights and Asian Values: Contesting National Identities and Cultural Representations in Asia. Psychology Press. pp. 161–180. ISBN 0-7007-1212-7.
^ Jump up to: a b c d e "Vietnam's New Fertility Policy". Population and Development Review. 15 (1): 169–172. Mar 1989. doi:10.2307/1973424.
Jump up ^ "Resolution of 1993 on Policy Concerning the Population and Family Planning Work". Hanoi Voice of Vietnam Network. Retrieved 12 March 2015.
Jump up ^ May, John F. (March 30, 2012). World Population Policies: Their Origin, Evolution, and Impact. Springer. pp. 139–145. ISBN 94-007-2836-0.
Jump up ^ "Population Ordinance (6/2003)". The Standing Committee of National Assembly. Missing or empty |url= (help)
^ Jump up to: a b "Ordinance No. 08/2008". Retrieved 12 March 2015.
Jump up ^ Pham, Bang Nguyen (2014). "The Demographic Transition and Implications for the New Law on Population in Vietnam". Asian Population Studies. 10 (3): 237–240. doi:10.1080/17441730.2014.955162.
^ Jump up to: a b Haughton, Jonathan (1997). "Falling Fertility in Vietnam". Population Studies: A Journal of Demography. 51 (2): 203–211. doi:10.1080/0032472031000149916.
^ Jump up to: a b Wisensale, Steven (2000). "Family Policy in a Changing Vietnam". Journal of Comparative Family Studies. 31 (1): 79–90.
Jump up ^ "An Overview of Population and Development in Vietnam". Population Reference Bureau. Retrieved 19 April 2015.
Jump up ^ Nhi, Tran Xuan. "Vietnam's families". Worldwide State of the Family. Missing or empty |url= (help)
^ Jump up to: a b c Haughton, Jonathan; Haughton, Dominique (1995). "Son Preference in Vietnam". Studies in Family Planning. 26 (6): 325–337. doi:10.2307/2138098.
^ Jump up to: a b c d Guilmoto, Christophe Z. (March 2012). "Son Preference, Sex Selection, and Kinship in Vietnam". Population and Development Review. 38 (1): 31–54. doi:10.1111/j.1728-4457.2012.00471.x.
^ Jump up to: a b c d Belanger, Daniele; Khuat, Thi Hai Oanh; Liu, Jianye; Le, Thanh Thuy; Pham, Viet Thanh (2003). "Are Sex Ratios at Birth Increasing in Vietnam?". Population. 58: 231–250. doi:10.2307/3246604.
Jump up ^ "Vietnam's New Fertility Policy". Population and Development Review. 15 (1): 169–172. February 1989. doi:10.2307/1973424.
^ Jump up to: a b Edwards, S. (September 1992). "In Vietnam, Contraceptive Awareness High, Use Low Despite Two-Child Policy". International Family Planning Perspectives. 18 (3): 117–119. doi:10.2307/2133412.
Jump up ^ Johansson, Annika; Le, Thi Nham Tuyet; Nguyen, Lap; Kajsa, Sundstrom (September 1996). "Abortion in Context: Women's Experience in Two Villages in Thai Binh Province, Vietnam". International Family Planning Perspectives. 22 (3): 103–107. doi:10.2307/2950750.
^ Jump up to: a b c d Goodkind, Daniel (December 1994). "Abortion in Vietnam: Measurements, Puzzles, and Concerns". Studies in Family Planning. 25 (6): 342–352. doi:10.2307/2137878.
Jump up ^ Nguyen, Thanh Binh (January 2012). "Abortion in Present Day Vietnam". International Journal of Academic Research in Business and Social Sciences. 2 (1): 56–62.
^ Jump up to: a b c Whittaker, Andrea (2012). Abortion in Asia: Local Dilemmas, Global Politics. Berghahn Books. ISBN 0-85745-795-0.
^ Jump up to: a b c Ngo, Thoai D.; Keogh, Sarah; Nguyen, Thang H.; Le, Hoan T.; Pham, Kiet H. T.; Nguyen, Yen B.T. (June 2014). "Risk factors for repeat abortion and implications for addressing unintended pregnancy in Vietnam". International Journal of Gynecology & Obstetrics. 125 (3): 241–246. doi:10.1016/j.ijgo.2013.11.014.
Further reading[edit]
Fong, Mei (2015). One Child: The Past And Future Of China’s Most Radical Experiment. Houghton Mifflin Harcourt. ISBN 0-544-27539-X.
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