Nel's New Day

June 30, 2016

Supreme Court Does a 180 Degree Turn

Supreme Court decisions looked hopeless just six months ago. Many of us feared that women would lose abortion rights, and domestic abusers could stomp around with their guns. Affirmative action, rights of unions, and continued Affordable Care Act provisions seemed impossible. What a difference one person makes! Antonin Scalia’s death in February left only eight justices—for a long time if the GOP has its way—and the tone flipped from devastation to optimism.

The 4-4 ties kept an injunction against the DHS immigration policy but saved public union dues, especially after the court refused to hear the case again. Ties don’t establish the law of the land; they don’t establish precedent. All they do is confirm a lower court ruling. The case about religious objections from Catholic nonprofits refusing insurance coverage for employees’ birth control was returned to a lower court to be fixed. These cases, however, did not destroy a progressive movement; two of these three cases just slowed its progression.

In at least three cases, however, a majority voted in favor of progressives, both times with Justice Anthony Kennedy as the swing vote. The zombie case Fisher v. University of Texas, returning from what should have been an earlier death, upheld the school’s affirmative action plan. Race can continue to be considered to increase college admissions of disadvantaged minorities because, as Kennedy recognized, diversity’s educational benefits cannot be reduced to exact numbers. Now affirmative action can be used if race-neutral alternatives are not enough and if race plays only a small part. The only other Supreme Court case, decided in 2003, warned of a 25-year deadline. This ruling has no such warning. The vote in this case was 4-3 because Justice Elena Kagan recused herself. With Scalia’s vote, it would surely have been a tie.

Women are cheering the 5-3 ruling in Whole Woman’s Health v. Hellerstedt that struck down faux health requirements and “undue burden” for abortions in Texas. Law required clinic doctors to have “admitting privileges” in nearby hospitals and clinics to meet expensive, and unnecessary, standards for “ambulatory surgical centers” (ASC).  “Undue burden” was a standard set up for abortion restrictions in Planned Parenthood v. Casey almost 25 years ago, but the health issue set new law. Justices warned against state anti-abortion laws that claim to be for health reasons but don’t protect women’s health. Again Kennedy, for the first time supporting abortion rights for women, cast the deciding vote. If he had voted against Whole Woman’s Health, Texas could have kept closing all its clinics—now down to about 20 for 5.4 million of reproductive age.

This ruling affects laws in several states throughout the nation; almost half of them lied about health reasons in restricting abortion rights. The high court announced that it will not consider appeals from Mississippi and Wisconsin on laws similar to those in Texas, ending those unconstitutional laws. Alabama dismissed its appeal to keep its anti-abortion law. Laws are on hold in Kansas, Louisiana, Oklahoma, and Tennessee. Other states are still fighting: Michigan providers are deciding whether to challenge the state’s ASC law, and Florida’s admitting privileges law goes into effect on July 1.

In question also are other anti-abortion laws such as waiting periods and mandated useless medical procedures preceding the abortion. In Indiana, a judge blocked the state’s new anti-abortion law. Planned Parenthood will work to block anti-abortion laws in eight states.

In Voisine v. United States, two men from Maine whose guns were removed after misdemeanor convictions in domestic violence argued that “reckless” conduct wasn’t enough for them to lose their guns. The high court disagreed, voting 6-2 that “a reckless domestic assault qualifies as a ‘misdemeanor crime of domestic violence.”

A little-mentioned Supreme Court decision in the media may have a long-reaching impact. A 4-4 tie in Dollar General v. Mississippi Band of Choctaw Indians upholds rulings from the higher Tribal court, the District Court, and the 5th Circuit Court that non-Tribal businesses and individuals can legally face civil suit in Tribal courts. Dollar General had signed a contract with the tribe swearing to uphold its health and welfare, and the manager of a Dollar General on the reservation molested a 13-year-old Tribal boy.

Limited authority of Tribal governments frequently leaves little recourse for victims of sexual attacks. Native American women in the U.S. are twice as likely to suffer sexual assault as other women in the nation, and 80 percent of these assaults are by non-Tribal men who can get off free because tribal courts cannot criminally prosecute non-Tribal members not intimately known to the victims. Federal authorities tend not to pursue these rape cases.  This problem was exacerbated 38 years ago by Oliphant v. Suquamish, in which the high court ruled that Tribal courts cannot criminally prosecute non-tribal members even when the crime is committed on the reservation, making race a de jure (legal) factor in these cases.

About Oliphant, Amy Casselman, author and former case work for the Washoe Tribe of California and Nevada, said:

“Reservations became hunting grounds. This creates a lot of different types of crime—drug production, drug trafficking, human trafficking—but the people who disproportionately feel this sense of predation are Native women. Sexual assault in the US is an overwhelmingly intraracial crime, meaning that rape happens overwhelmingly between two members of the same race. Native women are the one statistical anomaly.”

In the 2013 reauthorization of the Violence against Women Act, Congress stipulated that Tribal courts only have the authority to prosecute non-Tribal sexual offenders who have pre-existing intimate relationships with the women they abused, purposely excluding from prosecution unknown predators who specifically seek out reservations to commit their crimes. The only course of action comes from civil suits.

The Supreme Court does not finalize this case that began 13 years ago; it merely allows the sexual assault case to move forward in tribal courts. But that is far more than Native Americans had before this decision. Full restoration of tribal sovereignty won’t happen until Congress passes a law or the high court overturns Oliphant.

The high court benefited women when it declined to hear a Washington state case in which pharmacists were told that their religious objections could not keep them from dispensing Plan B or other emergency contraceptives. That refusal to hear Stormans Inc. v. Wiesman allows women to get medication no matter what the person views of a pharmacy owner because the 9th Circuit Court had twice ruled in favor of women.

A Washington state judge has also ruled that public hospitals must provide abortions on side if they offer maternity services. The ruling supports the Reproductive Privacy Act, passed by voter initiative in 1991.

On the minus side, the tie allowing a Texas judge to keep his injunction against a DHS policy trying to stop some removals of immigrants appears to be a disaster for the president’s policies. According to noted judge Richard Posner, however, the decision may not make any changes. And as law professor Peter Shane wrote, the decision has nothing to do with executive decisions because it was an agency decision.

The Supreme Court dispensed two disasters in its last week. In Utah v. Strieff, a 5-3 ruling on gender lines overturned the Utah Supreme Court and ruled that an illegally detained person can be subject to lawful search and seizure if the person has a warrant for arrest. Justices Sonya Sotomayor and Ruth Bader Ginsburg argued that this decision contradicts previous Court decisions that had deemed such evidence inadmissible as “fruit of the poisonous tree.” Sotomayor said that police can verify legal status at any time, that a person’s body is always subject to invasion, and that it legitimizes racial profiling:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.”

The worst ruling, however, may have been the unanimous exoneration of former Virginia governor Bob McDonnell on a charge of corruption by overturning his conviction. Chief Justice John Roberts referred to Citizens United ruling that “ingratiation and access” were “not corruption.” McDonnell and his wife took expensive gifts, loans, and vacations worth more than $175,000 in return for favoring a diet-supplement business benefactor, but the court ruled that only formal and concrete government actions such as filing a lawsuit counts. Arranging meetings doesn’t, giving elected officials a blank check to trade for access. The case was returned to the lower court with the stricter standard but will most likely fail.

All except two of the progressive decisions described above would certainly have lost or had a tie if Scalia had voted. I would also ask if he might have swayed some of the justices toward his far-right position in argument if he were still sitting on the court. All in all, the outcome this year was much better than was expected when the session started last fall.

A message to people who agree with this man who said he wouldn’t vote for Hillary Clinton: “If that means Trump wins, it’s not my fault, the Democrats should have nominated a viable candidate.” Yes, it is your fault, and you will be enabling a GOP president to nominate Supreme Court justices worse than Antonin Scalia.

March 7, 2016

More Than Candidate Conflict–Such As Women’s Rights

The results from wacko caucuses that let 18,000 people in an entire state determine its presidential candidate continue to roll in and dominate the media while almost all other news is left in the dust. Tomorrow brings more about the presidential election and nothing else. But there is more news—like information about the GOP’s attempt to dominate women’s lives by denying us our reproductive rights.

For example, the House committee to close down Planned Parenthood after 11 other investigations showed no fault for the organization that operates thousands of women’s clinics nation-wide. The only indictments related to the discredited doctored videos produced by extremists were for the anti-choice activists.

We could subtitle the committee “Baby Parts,” which is how Rep. Diane Black (R-TN) referred to the issue, but the issue  is called the “Select Investigative Panel on Infant Lives” despite the fact that the subject is fetal tissue—not infants. The hearing’s focus was on a legal act since 1970, the ethics of donating fetal tissue from aborted fetuses for scientific research that has resulted in vital medical breakthroughs. This donation has nothing to do with whether women have abortions, but the choice by chair, Marsha Blackburn (R-TN), to feature people hostile to abortion shows her political bent.

Two people were allowed to testify about the facts of the case. R. Alta Charo, a professor at University of Wisconsin’s Law School and the School of Medicine & Public Health, said, “Federal review has repeatedly found that the option to donate tissue has no effect on whether a woman will choose to have an abortion.” She added that the Center for Disease Control has requested fetal tissue donations to speed up its study of Zika, the virus linked to severe brain defects in thousands of newborns. “The absence of this kind of research could lead to more abortions” by women who find out their fetus has been affected by the disease. “If we cut off this research, we’re facing a global emergency,” Charo said.

A serious difference of opinion on the committee, with the Republicans winning, was whether to issue subpoenas to medical researchers instead of disbanding. Rep. Jerrold Nadler (D-NY) asked why the committee is demanding names of researchers and medical students dealing with fetal tissue and pointed out that publicizing their names could “endanger their lives” from attacks from anti-abortion extremists. Blackburn said that the committee has the right to do this but refused to give any reasons for why the committee needed these names. Pointing out the shooting at the Colorado Springs Planned Parenthood clinic and explaining the committee members would be “complicit” in murders of researchers had no influence on the eight GOP members who outnumbered the six Democrats. The gunman who shot 12 people, killing three of them, explained his actions by saying “No more baby parts.”

The Democrats at the hearing called the committee’s actions a witch hunt. Rep. Jan Schakowsky (D-IL) compared Blackburn’s investigation into researchers and doctors to former Sen. Joe McCarthy’s (R-WI) abusive tactics 60 years ago. Rep. Jackie Speier (D-CA) said that those burned at the stakes “are our scientists, who hold future medical breakthroughs in their hands [and] brave women’s healthcare workers who are simply trying to care for their patients.” Rep. Suzan DelBene (D-WA) said, “This is not an objective hearing. This is a debate against a woman’s right to chose.” Rep. DelBene summarized the day’s events with this question: “Do you think ideology should shape the rules about scientific research?”

On the same day as this House travesty, the remaining eight U.S. Supreme Court justices heard oral arguments in Whole Woman’s Health v. Hellerstedt, concerning the most restrictive anti-choice laws in the nation. If the court decides to rule on the case this year, it will need five votes to overturn the Texas law but just four to make the laws uncertain in other states. Justice Antonin Scalia would certainly have voted to uphold the Texas law, but he is no longer on the court.

Four of the justices hearing the case, three of them women, seemed suspicious of the claim that the law was to protect women’s health because of unreasonable mandates for women’s clinics to turn them into “ambulatory surgical centers.” Stephen Breyer pointed out that colonoscopies, which don’t need to be performed in an ambulatory surgical center, are 28 times more likely to have complications than abortions. Elena Kagan asked the Texas attorney about this, but he had no response. Then she pointed out that liposuction actually has greater complications. Justice Sonia Sotomayor asked why a dilation and curettage associated with a miscarriage can be performed in a doctor’s office whereas a basically identical D&C for an abortion must be performed in an ambulatory surgical center.

The swing vote for a majority comes from Anthony Kennedy, who shifts back and forth from finding abortion “icky” (Gonzales v. Carhart) and wishing to keep some vestige of abortion (Planned Parenthood v. Casey). After statements that Texas imposed heavy burdens on clinics performing abortions but not on facilities performing riskier procedures, Kennedy suggested that the law creates an “undue burden,” a criterion, determined in Casey, that could result in striking down the law. A Kennedy concern was that the law would result in more women having surgical abortions rather than mediation abortions, a situation that he said “may not be medically wise.”

The uncertainty of the court’s decision comes from the claim that admitting privileges requirements cannot be determined at this stage of litigation. In discussing this procedural issue, Kennedy suggested returning the case to the lower court for additional fact-finding. To block the pro-choice faction, Justice Samuel Alito suggested the requirement of very specific information or challenges to each line of the many pages of regulations individually. Alito noted, “It will be work,” and the burden falls on abortion providers and their advocates.

If the Texas laws go into effect, the state will have fewer than ten women’s clinics for 5.4 million women of childbearing age, many of whom live 200 miles away.  The attorney general defending Texas law said that women who live more than 100 miles from a clinic can just go across the border into New Mexico. Justice Ruth Bader Ginsburg found that “odd” because “New Mexico doesn’t have any surgical ASC requirement, and it doesn’t have any admitting requirement.” Kagan asked if Texas could demand that all clinics conform to Massachusetts General to increase health benefits “because MGH, it’s a great hospital.”

Texas laws are proposed in many red states throughout the country and drafted by Americans United for Life, an anti-abortion group that, according to its website, “works to advance life issues through the law and does so through measures that can withstand judicial obstacles so that pro-life laws will be enforced.”

Missouri initiated both laws under discussion in the Supreme Court, mandating clinics performing abortions be outpatient surgical centers in 1986 and requiring doctors have privileges at a nearby hospital in 2005. By now, the state has only one clinic, making it one of five states in the nation in this situation. If the court strikes down these laws in Texas, other states may lose them. States have passed over 200 TRAP (Targeted Regulation of Abortion Providers) laws within the past five years, including Missouri’s 72-hour waiting period. The claim is always that the laws protect women, and the claim is always false.

Two laws that Missouri  lost are spousal consent for an abortion and second trimester abortions to be performed in a hospital. The state did block abortions in public facilities, for example the University of Missouri’s medical school in Kansas City. In accordance with religious beliefs, laws signed by then Gov. John Ashcroft in 1986 stated, “The life of each human being begins at conception.”

Also last week, seven of eight justices blocked a Louisiana law requiring doctors who perform abortions to have hospital rights within 30 miles of the clinics. In this case, June Medical Services v. Gee, Clarence Thomas was the only dissent. The order blocking the Louisiana law began with 14 important words: “Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole.” In short, they criticized the 5th Circuit Court for ignoring the high court’s previous stay orders if the lower court “cannot discern the underlying reasoning” behind those orders and rebutted the lower court’s logic on its own terms.

This order may show that the Supreme Court opposes the 5th Circuit Court’s efforts to eradicate Roe v. Wade. And Scalia is not there to protect laws that violate women’s reproductive rights.

 

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