Nel's New Day

March 22, 2018

Could ‘NIFLA v. Becerra’ Change Free Speech, Abortion Law?

The past week has been again filled with chaos—firings of the national security council, resignation and appointments of the legal team for Dictator Donald Trump (DDT), continued lawsuits against the federal government, additional information about DDT’s sexual misconduct as more women join Stormy Daniels, and concerns regarding the retention of special investigator Robert Mueller. No wonder that a case before the Supreme Court last Tuesday got little attention from the media. In normal times that case would have been front and center on television because it’s one of seven cases thus far this judicial year that addresses free speech—two of them major lawsuits.

Last December the religious legal group Alliance Defending Freedom (ADF) and the federal government argued before SCOTUS that a cake in Colorado is free speech because the baker is an “artist.” A ruling in his favor and opposing service for a gay couple would permit rampant discrimination across the United States, not only against LGBTQ people but also anyone else who offended the religious and moral sensibilities of everyone in all businesses—retail, health care, food services—everyone.

Last Tuesday’s case, NIFLA v. Becerra, the federal government joined ADF to oppose a California law that requires community clinics to post notices about their licensing (or lack thereof), the availability of a medical provider, and patients’ access to abortion and other family planning services in the state. The 2015 California Reproductive FACT Act mandates that licensed community clinics whose “primary purpose is providing family planning or pregnancy-related services” disclose to all patients that California offers “free or low-cost” contraception, prenatal care, and abortion. These clinics must provide a telephone number that patients can call for more information about state-funded services. Clinics focusing on pregnancy or family planning but are unlicensed must clearly provide a warning in the clinic and in advertising that they have “no medical provider.”

Many of California residents are unaware of expanded funding for prenatal and family planning services from the Affordable Care Act, and many clinics, especially the anti-abortion crisis pregnancy clinics (CPCs) pressure women to not have an abortion. Many CPCs hide religious affiliations and claim that they provide more services than available in the clinics. Owners and employees of the CPCs use “free speech” to object to the law by arguing that it makes them “complicit in facilitating an act they believe hurts women and destroys innocent lives.” They maintain that the FACT Act is “gerrymandered” to “commandeer” their expression, “manipulat[ing] the marketplace of ideas” to favor abortion in violation of the First Amendment.

The argument from Michael Farris, a member of ADF, is that not all doctors are required to post the information, only community clinics with pregnancy-related services. He wants to move the law to heightened judicial scrutiny, which raises the legal bar for California to keep the law. Justice Samuel Alito bought the argument that the “crazy exemptions” of the law creates “a very strange pattern.” California Solicitor General Joshua Klein explained that the law targets community clinics where millions of low-income Californians get health care and exempts private physicians because they usually don’t have poorer women patients.

Jeffrey Wall, the deputy U.S. solicitor general who joined Farris on behalf of the federal government, tried to persuade the justices that informing pregnant women about alternatives to abortion are necessary only when medical procedures are provided and that unlicensed clinics don’t provide medical procedures. Justice Sonia Sotomayor pointed out that CPCs sometimes provide medical procedures such as ultrasounds and pregnancy tests and give pregnancy counseling, much like doctors’ medical advice in discussing abortion procedures.

The case also addresses whether clinic users should know which clinics are licensed and provide a full range of subsidized medical options. Sotomayor described Fallbrook Pregnancy Resource Center’s website:

“There is a woman on the homepage with a uniform that looks like a nurse’s uniform in front of an ultrasound machine. It shows an exam room. It talks about ‘abortion,’ ‘your options,’ and ‘our services,’ advertising ‘free ultrasounds.’ But in fact, the Fallbrook Pregnancy Resource Center is an unlicensed CPC. If a reasonable person could look at this website and think that you’re giving medical advice, would the unlicensed notice be wrong?”

Sotomayor compared NIFLA to Planned Parenthood v. Casey that allows states to pass “informed consent” laws forcing abortion providers to deliver a state-approved anti-abortion canned statement before the procedure even if the information is false. Both situations mandate information for women, one on alternatives to the clinics and the other about termination of pregnancies. Justice Stephen Breyer dubbed this issue “what is sauce for the goose is sauce for the gander.” Denying California the right to require postings at all community clinics regarding availability of free and/or inexpensive family planning services could give free speech to only one side of the abortion argument.

The case was appealed to the Supreme Court after a federal district court and the 9th U.S. Circuit Court denied an injunction in favor of CPCs. Both lower courts maintained that California’s law was constitutional in the same way that Pennsylvania could require doctors to tell abortion patients about the “nature” of the procedure and the “probable gestation age” of the fetus.

Observers watching the negative comments from some justices believe that at least part of the FACT Act will be struck down; the question is how much and on what grounds. Mandatory disclaimers in multiple languages on advertising for unlicensed CPCs may be unconstitutional. Requiring clinics to tell patient about a lack of license seems legal. The middle ground is the crux: whether states can force CPCs to tell patients about services elsewhere.

A serious problem in this case comes from dangers in CPCs that promise medical assistance but have the sole purpose of forcing a woman to carry a fetus to full term. Over 2,700 CPCs throughout the nation lure pregnant women into their facilities and then terrify them with lies about their future if they have abortions.

States like Texas are using public funds from bona fide community clinics to unlicensed CPCs exempt from regulations or credentialing because they provide only non-medical services such as self-administered pregnancy tests or parenting classes. One-fourth of Texas’ 200 CPCs are funded by federal taxpayer money through the $38 million operating budget of “Alternatives to Abortion” for low-income women. With no government oversight, the “Texas Pregnancy Care Network” subcontracts with 51 CPCs with most money going to “counseling,” a term with no definition. Another $739,000 went to advertising. When asked if the CPCs were medically licensed, a state spokesperson said that they are not medical clinics.

People who go to CPCs don’t know they won’t get any medical care. Austin (TX) tried to pass an ordinance requiring that clinics state whether they have doctors. A federal judge struck down the ordinance with the argument that it violated CPCs’ due process. Texas law does require doctors to lie to women about medical risks of abortions, a procedure with less risks than pulling wisdom teeth or taking out tonsils.

In his 12 years as Chief Justice, John Roberts has greatly expanded the definition of free speech for corporations. To him and a majority of the justices in Citizens United, all money is free speech meaning unlimited anonymous corporate donations to political candidates, a ruling later expanded in McCutcheon v. FEC. These cases, and others such as Hobby Lobby allowing corporations to deny birth control to employees using faulty scientific information, shows that Roberts’ defense of the First Amendment protects only corporations. He uses the same argument to give corporations benefits in cases involving drug advertising and trademark regulations as well as removal of unions’ rights. A recent case argued whether state laws can permit mandatory fees for workers to pay for the support services that unions are legally to provide all employees.

The ruling in NIFLA, most likely in June, will either leave the California law in place or give pro-choice activists the grounds to argue against laws in other states that require doctors to give pregnant patients the false information that abortions cause breast cancer and infertility. The NIFLA lawyers argue that posting information “unconstitutionally compels [the clinics] to speak messages that they have not chosen, with which they do not agree, and that distract, and detract from, the messages they have chosen to speak.” A ruling in their favor might take the shackles off abortion providers and other doctors so they can deliver “the messages they have chosen to speak.” Breyer said that the court’s most important job is “to keep sauces the same.”

May 22, 2015

California’s Oil Spill, Drought–A Predictor

As California suffers from the fifth year of the worst drought in 1200 years, Gov. Jerry Brown has declared a state of emergency after a faulty oil pipeline spilled a minimum of 105,000 gallons of the crude on a pristine beach north of Santa Barbara. The black sludge was pouring through the pipeline at 84,000 gallons an hour before the 24-inch pipeline diverted the oil down a storm drain and into the ocean for several hours.

The disaster, barely a week after the Obama Administration gave conditional approval for drilling the Arctic Ocean, caused closure of local fisheries and local beaches as well as killing wildlife before moving out into the ocean. There, the oil badly damages vulnerable creatures such as mussels, barnacles and other shellfish that cannot leave the area because they are connected to the seafloor and rocks. The oil seeking into the sediment, reefs, and beaches will smother organisms in a formerly pristine eco-system and can never be cleaned out.

The owner has been issued 176 safety and maintenance infractions for the Plains All American Pipeline in the past nine years, more than three times the national average. County officials require that all pipelines have an automatic shutdown valve, but a 1988 court ruling allowed the pipeline’s former owners to not use one because it could trigger false alarms. The company’s infractions of pump failure, equipment malfunction, pipeline corrosion, and operator error has spilled more than 864,300 gallons of hazardous liquid and caused over $32 million in property damage. Corrosion was determined the cause in roughly 90 of those accidents, and failures in materials, welds and other equipment were cited more than 80 times.

Offshore oil production is prohibited in California waters since 1969, but the state waters end at three nautical miles offshore. Beyond that boundary, oil drilling is extensive as shown by the green boxes on the map.

ExxonMobileLasFlores-638x477 With almost 18,000 miles of pipe networks in several states, the Plains reported $43 billion in revenue last year and $878 million in profit last year. Of the over 1,700 pipeline operators, only four companies reported more infractions than Plains Pipeline. The U.S. Environmental Protection Agency sued Plains in 2010 over a series of 10 oil spills in Texas, Louisiana, Oklahoma, and Kansas. Accused of spilling 273,420 gallons of crude oil, some of it into rivers. the company firm agreed to $3.25 million in fines and $41 million to upgrade its pipelines. Last year, a Plains pipeline sprayed about 10,000 gallons of oil over businesses in Atwater Village, an L.A. neighborhood.

Because the pipeline lacked any automatic shutdown valve, the disaster wasn’t discovered until a woman walking on the beach reported the smell of oil. No one knew how long the pipeline had been leaking, and the pipeline wasn’t shut down for another three hours. Santa Barbara is the site of the third-worst U.S. oil spills in January 1969 that led to then-President Richard Nixon signing the National Environmental Policy Act in 1969. He established the Environmental Protection Agency the next year and oversaw the passage of the Clean Water Act passed in 1972 and the Endangered Species Act in 1973. It was the 1969 oil disaster that led to Earth Day.

citizens cleaningAlthough most photos of the cleanup show workers in protective gear, people living nearby started the process because of the delay in sending anyone to clean up the beach.  Photos of the damage are available here. Warning: they will literally sicken you.

Last year, Louisiana GOP Reps. Vance McAllister and John Fleming recommended repairing oil pipelines with plastic garbage sacks and duct tape. In a House Subcommittee hearing, McAllister, who had worked in the oil industry, described the repair as “innovative.” He praised the person for using “Glad, not those crappy off-brand garbage bags.”  McAllister was not long for the House of Representatives because he was caught having an affair with a staffer, the wife of his friend. Fleming is still in the House, most recently voting to prevent abortions for fetuses who will not have a planet in adulthood.

While oil destroys life near Santa Barbara, other part of the fossil fuel industry is taking and contaminating the little water left in the drought-ridden state of California. Although the water-intensive fracking process doesn’t use as much water as agriculture, which uses 80 percent of the state’s supply, the highly-toxic wastewater from fracking may be leaching into the state’s aquifers and destroying the little drinking water remaining.

Chevron is making money off this wastewater by selling the toxic fluid back to farmers, putting industrial solvents and other chemicals into the crops. California now has a law mandating water testing for fracking chemicals, but the corporations have oversight. Independent testing of recycled irrigation water has uncovered large quantities of acetone and methylene chloride, both toxic to humans. Spilling these chemicals into the water would shut down gas stations, but corporations have no penalties. Chemicals in the water also permanently damages the soil. Rain water would filter out the salts, but the drought may get worse.

With two emergency situations—the drought and now the oil spill—California is facing a third. The increased number of fires thus far this year will only grow by June, and August will see even more severe conflagrations. Rains before April were short and limited, and the rains stop in April. Dry plants such as chaparral and eucalyptus literally explode, and the state suppression of fires has made conditions worse from the buildup of tinder. Heavy population in the state forces California to fight fires rather than let them burn their natural course.

The one GOP presidential candidate in the current race, Carly Fiorina, blames the environmentalists for the drought for “failing to create any new canals or waterways in decades.” Conservatives refuse to recognize the consequences of climate change, the loss of underground aquifers, and the destructive results of the greedy oil industry corporations.

Anyone who thinks that the problems of water and oil are only California issues are wrong. Forty million people depend on the Colorado River for drinking water. Untold millions more will see the price of food increase as water for agriculture disappears in an area that provides two-thirds of the U.S. winter vegetable production. Climate change has meant less snowmelt in the Rockies, and a 14-year drought in the Southwest cut down on the Colorado River’s flow. Reservoirs are at less than half their capacities. Lake Mead is at its lowest level since it was created in the 1930s, down from near capacity in 2000. Lake Powell is in the same condition. Between 2004 and 2013, people tapped underground water equivalent to 1.5 full Lake Meads. In just nine years, an essentially nonrenewable resource was badly depleted.

In the early 21st century, at last 14 percent of the people in the United States are food insecure. With the current conservative philosophy promoting income inequality, that percentage will only increase. And with the conservative indifference regarding water use, this century will see the same number of people being water insecure, going to bed thirsty as well as hungry. California is simply the canary in the coal mine.

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