Nel's New Day

June 30, 2015

Last Week at SCOTUS: More Forward Than Backward

Two landmark cases came down from the Supreme Court last week—keeping health care for low-income people and granting marriage equality. Other lesser noticed cases, however, have influences on people across the United States. In seven other decisions last week, SCOTUS took at least five steps forward with two steps back, a better result than most progressive people expect from the current court.

The two steps backward were pollution and the death penalty:

pollution from power plantsPower plants can continue releasing unlimited mercury, arsenic, and other pollutants, in a step toward invalidating the first U.S. regulations to limit toxic heavy metal pollution from coal and oil-fired plants. The 5-4 conservative ruling, written by Justice Antonin Scalia, accused the EPA of not  considering costs to the power industry before creating its regulation. The EPA actually estimated costs, but Scalia didn’t believe the agency’s calculations. Fortunately, the case was remanded to the D.C. Circuit for further consideration. If the lower court eliminates the regulations, pro-coal states have no arguments against EPA’s proposed regulations on carbon emissions, perhaps leaving the EPA free to regulate carbon dioxide. The EPA estimated that the new regulations would prevent 11,000 premature deaths each year as well as increasing the IQ for children who survived.

Executions are still permitted to use cruel and unusual punishment because the conservative court didn’t stop the use of a drug that fails to sufficiently sedate the subject. Glossip v. Gross goes farther, however, because it makes the death penalty impervious to many constitutional challenges. In oral arguments for the court, the opinion’s author, Justice Samuel Alito, sneered at death penalty opponents and accused the drug companies refusal to sell products to kill people, a “guerrilla war against the death penalty.”

A key declaration in the opinion is that the United States is required to have methods to execute inmates despite the fact that there is “some risk of pain is inherent in any method of execution.” Another part of the opinion is that lawyers must help decide the method of execution for their clients: a lawyer challenging one method of execution must name another, alternative method to be used instead.

Alito’s opinion brought fiery dissents, two of them read from the bench. Supported by Justice Ruth Bader Ginsburg, Justice Stephen Breyer protested the argument that the death penalty is constitution, writing, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” Scalia went back to the bench to call Breyer’s opinion “gobbledygook.”

Justice Sonia Sotomayor was far more scorching when she wrote:

“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment—the chemical equivalent of being burned alive. But under the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated.”

By refusing to hear a case preventing mandatory documentation for citizenship in federal elections, the Supreme Court blocked this requirement. Kansas and Arizona wanted a change in registration requirements to include proof of citizenship for these elections, but the 10th Circuit Court ruled that states cannot require this documentation.


Another step forward came from the Supreme Court decision to leave women’s clinics in Texas open until the court has heard the appeal about the state law to prevent abortions outside hospitals and “mini-hospitals,” ambulatory surgical centers. Justice Anthony Kennedy joined the progressive justices in the 5-4 vote. Texas restrictions had already closed about half the state’s 41 clinics within the past four years, and the newest law shut down all but nine, concentrated in four urban, higher-income areas of the state.

Progressive voters in Arizona may also be rejoicing after a 5-4 Supreme Court vote ruled that a voter-approved independent redistricting commission in Arizona is constitutional. Complaints of legislative partisan gerrymandering of congressional districts led to the law that a legislative-chosen independent commission of two Republicans and two Democrats with a chair who is not a member of either party make this decision. Although the ballot measure for a constitutional amendment to approve the commission went into effect 15 years ago, Arizona Republicans had no problem with the redistricting process until Democrats started winning more seats in 2012.

The U.S. Constitution states that the “times, places, and manner” of federal elections “shall be prescribed in each state by the legislature thereof.” The minority argued that a ballot measure is not part of “the legislature” because it is determined by the people of the state although the court had earlier decided that “legislature” can refer to the process exercised by people through direct democracy. The losing lawyer, Paul Clement, failed to persuade the majority with his argument that those election laws didn’t take power away from the legislature but the creation of the Arizona Independent Redistricting Commission did.

In arguing for the majority, Justice Elena Kagan asked if all the voter ID laws created by ballot measures would then also be unconstitutional. Kennedy argued that a constitutional amendment had given power to the people by allowing them to select U.S. senators.

In his dissent, Chief Justice John Roberts wrote, “What chumps!” in reference to the Congressional members who passed the 17th Amendment in 2012 that was then ratified by 41 states. The ruling was only for Arizona, but it may have far-reaching effects outside that state. Twelve other states also have commissions to assist in the redistrict process. The ruling also empowers voters in other states to reduce partisan control of the U.S. House. Studies show nonpartisan or bipartisan commissions leads to “districts both more competitive and more likely to survive legal challenge.” According to Ginsburg, 21 states have created initiative or direct lawmaking power, and 18 states can adopt amendments to the state constitution.

Arizona redistricting will return to the Supreme Court in the coming year when justices will hear another case accusing the independent commission of using race and partisanship for the congressional boundaries.

The Supreme Court struck a blow against the prison industrial complex in Johnson v. United States with the ruling that part of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Passed in 1984, the law requires judges to sentence people to 15 years life if they have three prior convictions for “serious drug offense” or “violent felonies.” The law, however, had no concrete definition for a “violent felony.” A clause in the ACCA sends felons to prison for any crime that “presents a serious potential risk of physical injury to another.” It could be drunk driving, fleeing police, failing to report to a parole officer, or even attempted burglary. Johnson’s prison sentence was extended because of a prior conviction of possession of a sawed off shotgun. Writing the opinion for the 8-1 decision, Scalia wrote that the clause in the law lacking a definition violates due process. Alito likes the law, and the ACCA was very popular with lawmakers because many states are required to fill up beds in private prisons.


This room in the California Institution for Men four years shows how overcrowded that prisons have become. Photo by Ann Johansson for The New York Times.

A huge victory for civil rights came from the 5-4 decision in Texas Dept. of Housing v. Inclusive Communities. Kennedy again joined the four progressive judges to rule that a lawsuit under fair housing law doesn’t need to prove that a developer or the government knowingly discriminated—only that the policy had a disparate impact which can frequently be shown with statistics.

The case came from Texas’ distribution of tax credits for low-income housing almost exclusively in racially segregated low-income areas, denying minorities few opportunities to move to integrated or wealthier areas. The opinion in this case also requires that decision-makers consider race to comply with the Fair Housing Act and design remedial orders to eliminate racial disparities through race-neutral means.

The typical 5-4 vote had one almost-silent justice writing the dissent. Clarence Thomas used an unfortunate example for his belief that “disparate-impact doctrine defies not only the statutory text, but reality itself.”

“Racial imbalances do not always disfavor minorities.… And in our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black.”

Taxpayer funds for religious schools may be on the docket next year after Colorado’s supreme court ruled that conservative families in affluent neighborhoods can not use public funds to send their children to religious charter schools.  A big player in this area is the Koch Brothers, whose Americans for Prosperity PAC works to expand voucher programs and buy school board elections throughout the country. In just one Colorado county, AFP spent $350,000 to dismantle teachers’ unions and public schools. GOP presidential candidate Jeb Bush is also a big player in the school privatization program. Conservatives desperately need students in private religious schools to indoctrinate them.

June 23, 2015

‘Roe v. Wade’ May Survive

The Supreme Court may have already made a decision about the closure of women’s clinics across the state of Texas in a little-watched case, Los Angeles v. Patel, about hotels. That case concerns a city ordinance requiring hotel operators to keep records, such as names and addresses of guests, and make these records “available to any officer of the Los Angeles Police Department for inspection.” Refusal could give hotel operators up to six months in jail and a $1,000 fine. A 5-4 decision, including the four more liberal justices joined by Kenney, determined that the ordinance violates the Fourth Amendment’s safeguards against unreasonable searches and seizures because it does not afford these hotel operators “an opportunity to obtain precompliance review before a neutral decisionmaker.”

Justice Sonia Sotomayor wrote that the plaintiffs may bring a “facial” challenge to the Los Angeles ordinance. These challenges seek to totally invalidate a law whereas “as-applied” challenges seek a decision about whether a law is applied only to a specific plaintiff or plaintiffs. The court’s precedents were not clear before Patel about the appropriateness of facial challenges, and one case indicated that “the challenger must establish that no set of circumstances exists under which the Act would be valid.”

Sotomayor explained that in the court’s assessment of a facial challenge, it “considered only applications of the statute in which it actually authorizes or prohibits conduct.” In the major abortion case Planned Parenthood v. Casey, the court struck down the part of Pennsylvania’s law requiring a woman to notify her husband before getting an abortion. Supporters of the law argued that facial relief was wrong because most women tell their husbands if they are getting an abortion. That means the law does not impose an undue burden on these women. The court disagreed because constitutional law should be considered by its impact on people who it affects. “The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”

This statement can also be used as a rebuttal to the decision about closing women’s clinics in Texas by three George W. Bush-appointed judges on the 5th Circuit Court of Appeals. The panel ruled that facial challenges can almost never be brought against anti-abortion laws. Although 900,000 women of reproductive age would have to travel more than 150 miles for an abortion, the lower court reasoned that these 900,000 women are only 17 percent of the 5.4 million women of reproductive age in the state. To these three men, 17 percent isn’t enough to allow a facial challenge because it doesn’t provide a sufficient burden to most of the women in Texas.

Justice Sotomayor’s opinion in Patel repudiates this analysis by the 5th Circuit. If “[t]he proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant,” as the Court held in Patel, then the Fifth Circuit erred by focusing on how certain aspects of Texas’s law would influence women that they do not impact.

Although the Patel case did not have a unanimous vote, the position on facial challenge apparently did. Even Justice Antonin Scalia’s dissent in Patel agrees that a litigant’s “self-description” of his lawsuit as a “facial” challenge provides no “independent reason to reject it, unless we [are] to delegate to litigants our duty to say what the law is” (invoking Marbury v. Madison without citing it). In a separate dissent Justice Samuel Alito, joined by Justice Clarence Thomas, notes that he sees “serious arguments” that the fact-specific Fourth Amendment is “inconsistent with facial challenges” and so he proceeds only by “assuming” that “such facial challenges ever make sense conceptually.”

Roe v. Wade is still at risk across the country, but Patel is a good beginning. Perhaps a majority of the Supreme Court won’t be as restrictive as the 5th Circuit Court of Appeals. Patel’s decision may also be the foundation for overturning the decision from the 5th Circuit to highly restrict the reproductive rights of women in Texas and other states.

Last Friday, the 5th Circuit refused, by two to one, to delay its June 9 ruling closing many of the women’s clinics although it modified it by giving a clinic in McAllen more time to adapt to new restrictions. Ten of the remaining 19 clinics in Texas are still required to close on July with some of them never reopening. The case has been appealed to the Supreme Court through Scalia who handles emergency legal filings from the 5th Circuit.  He can act on his own or consult with the other justices. The Supreme Court is currently considering whether to review a Mississippi case to replace a state abortion law that would close the last clinic in the state.

In Texas, the issues are whether clinics performing abortions must have facilities equal to those in surgical centers and whether doctors performing abortions must have patient-admitting privileges at a nearby hospital. These limitations will reduce Texas abortion facilities by 75 percent in just two years, causing “a severe shortage of safe and legal abortion services.” Clinics and doctors argue that the two provisions are not medically necessary at women’s clinics. The state had 41 abortion clinics before the new law began taking effect. A temporary Supreme Court order putting limits on the state law allowed some clinics to reopen last October. Ten of the remaining 19 clinics were closed by the 5th Circuit decision.

Abortions are a minor part of women’s clinics, and Gov. Greg Abbott is creating more health risks for low-income women. He just signed a budget proposal ousting Planned Parenthood from Texas’ Breast and Cervical Cancer Services program, which provides cancer screenings for uninsured, low-income women. Any clinics affiliated with abortion providers will no longer receive funding for cancer screening services.


As more and more states close women’s clinics, the United States is rapidly becoming a Third World country for women’s reproductive rights. Drones might help solve the problem. In Poland, Women on Waves, the Dutch group advising women in countries where abortion is illegal on how to safely terminate their own pregnancies, is dropping medication-abortion packets for women’s groups to distribute to those who want abortions. In Europe, only Poland, Ireland, and Malta fail to have legalized abortions.

Telemedicine abortion is an easy way to safely end abortions early in a pregnancy as shown in Iowa, but 16 states have outlawed the practice. In states that have not yet outlawed the method, Utah has a mandatory face-to-face meeting with a doctor, followed by a 72-hour wait, but lacks any prohibition on doing a medication abortion without a doctor present.

Six states have just one legal abortion clinic each. Louisiana is following Texas in a fight to close down most of the women’s clinics. Four states have three-day waiting periods. Texas and Louisiana are in the courts fighting to close most of their clinics down. In the United States, women can technically legally end their own pregnancy legally as long as they do it well before viability. If this sounds medically dangerous, think about how much worse illegal abortions can be because safe and clean women’s clinics are gradually closed throughout the United States.

June 26, 2014

Free Speech Includes Bullying Women*

Eight murders, 17 attempted murders, 42 bombings, 181 arsons, 100 acid attacks, and countless other incidents of blockades, vandalism and threats. This isn’t a listing of tragic events in a Third World country; it’s what has happened at women’s clinics in the United States since 1977. Massachusetts alone had two women shot dead and another five women wounded. That’s the reason that the state passed a law in 2007 requiring a 35-foot buffer zone around clinics. That’s the law that the U.S. Supreme Court overturned in today’s ruling.

The law was intended to protect the safety of both patients and employees. Protesters claimed that they had the First Amendment right to “engage” women at the clinics. The poster witness for the anti-choice activists was a “sweet-little-old-grandmother” who said she just wanted to talk to the women, to give them “comfort.” It’s the same excuse that abusers use for their victims: they just want to “talk.” Eleanor McCullen, the lead petitioner, said about her anti-choice discussions with the women, “We’ll be gentle and loving.”

All nine justices, in McCullen v.Coakley, agreed to overturn a lower court ruling that relied on the U.S. Supreme Court’s 2000 ruling for an eight-foot buffer-zone law in Colorado. The three-judge panel of the 1st Circuit Court of Appeals ruled that “the law does not require that a patient run a public-sidewalk gauntlet before entering an abortion clinic. First Amendment rights do not guarantee to the plaintiffs (or anyone else, for that matter) an interested, attentive, and receptive audience, available at close-range.”

The justices ignored a report from the National Abortion Federation showing buffer zones reduced criminal activity at 51% of facilities after these were put into place. Three-fourths of the facilities reported that buffer zones “improved patient and staff access to the facilities.” In the same survey, 92% of facilities said they are concerned about their patients’ safety approaching the facility. In addressing freedom for protesters to voice opposition, Physicians for Reproductive Health board chair Nancy L. Stanwood requested the same freedom from harassment and violence in accessing health care services. Women have lost this freedom as activists are now free to verbally hound them up to the doorway of Massachusetts’s women’s clinics.

In the SCOTUS ruling, Chief Justice John Roberts wants public access to all “public fora” for speech activities. Free speech on the sidewalks has a higher constitutional priority than public safety concerns for women entering clinics. “Government’s ability to restrict speech in such locations is very limited,” Roberts wrote. The ruling appeared to show concern that the number of women who were talked out of abortions had fallen because protesters had been kept away from them. Two witnesses had reported that they reached far fewer people than before the Massachusetts’ law took effect.

The Court ruled that abortion providers could create rules with the police on a case-by-case basis to ensure safe access.

The question that justices avoided in the case is a definition of intimidation. Should women going to a clinic for any health reasons—cancer screening, regular checkups, etc.—be subjected to people who lecture them on their killing a fetus. The Court said that the protesters are “sidewalk counselors” because they distribute leaflets and offer “an outstretched arm.” They seek to engage in “consensual conversations with women.”

Consensual usually means that all involved want the event to occur. How does the Court guarantee that the “counselors” are not actually blocking a woman from entering the clinic? Megan Amundson, director of the National Abortion Rights Action League’s Massachusetts chapter, said that violence occurs when “don’t want to talk or engage with the protesters.”

Mark Rienzi, attorney who persuaded the Court that his clients were very nice people and only wanted to talk, said that most of the trouble occurring at the Boston clinic was on Saturday mornings. Possibly an idea is to go on another day. Most of the women using the clinic, however, work during the week, making them vulnerable to the Saturday morning trouble.

Former state legislator Paul Demakis, who represented the district where John Salvi III walked into two different clinics and killed two receptionists, said, “What the protesters did was—in very aggressive, even offensive ways—to interfere with and to intimidate women going into health clinics to exercise their right to choose.” He worked to craft the 35-foot buffer-zone law that extended to 35 feet because Boston Police Captain Bill Evans said that a lesser radius was unenforceable. Demakis pointed out that 35 feet is “a little more than halfway between home plate and the pitcher’s mound.”

Before the buffer zone was enacted, protesters impersonated the police, screaming women’s faces, took telephone numbers, filmed inside patients’ cars. They touched the patients without consent and initiated physical altercations.

Today’s ruling against women shows where we fit in the hierarchy of law. Polling places and funerals have buffer zones of at least 150 feet and 300 feet, depending on state law. Earlier this year, SCOTUS ruled that an anti-war protester could be kept away from a public road near California military base and the political protesters could be kept farther away on sidewalks from George W. Bush than his supporters were. A unanimous SCOTUS ruling for Wood v. Moss decided that anti-Bush protesters were legally moved farther from the then-president’s dinner table than the friendly demonstrators. Justice Ruth Bader wrote, “People are not at liberty to speak whenever, however, and wherever they please.” Bush consistently required zones to protect himself from free speech protesters.

The justices also protect themselves. Last year, a federal district judge ruled that a 1949 law barring demonstrations on court property was unconstitutional, and SCOTUS immediately issued a regulation barring demonstrations on the public plaza in front of the Supreme Court building. Their buffer zone is 252’ by 98’ where people cannot picket. These spaces are all “public fora”  not covered by today’s ruling.

Supreme-Court1 buffer zoneThe only good news from today’s decision is that the Court could have wiped out all buffer zones. Justice Antonin Scalia wants to overturn the SCOTUS decision in Hill v. Colorado in which a majority of the Court allowed a 100-foot buffer around medical offices and an eight-foot buffer around patients. Part of that ruling stated that “protecting the well being of patients entering or exiting healthcare facilities is specifically targeted by this legislation because they are more likely to be emotionally and physically vulnerable.” Justice Anthony Kennedy, now the swing vote on the extremely conservative Court, was one of three dissenters in Hill. 

The bad news is that the entrance to women’s clinics will be filled by bullies calling women names such as whores and murderers. The same people will “accidentally” block women from entering and “accidentally” bump into clinic workers. Because of the nation’s lax gun laws, they may also “accidentally” shoot and kill clinic workers and patients. Little-old-lady Eleanor McCullen may have been the person to appear in court, but she won’t be the only person accosting women who need health care. Christian family values: physically intimidate women getting legal health care and workers who provide for their services.

In Wood, Justice Ginsburg explained that “in directing their displacement, the agents acted not to ensure the President’s safety, but to insulate the President from their message.” Women trying to get health care should be insulated from anti-choice protesters’ vicious, hateful messages.

Would the Supreme Court understand the dangers of today’s decision if eight of them had been murdered during the past 20 years? And how many murders, assaults, arsons, bombings, acid attacks, death threats, vandalism, and other acts of violence are necessary at women’s clinics before a more sane court addresses the question of buffer zones?

*Thanks to Steven Rosenfeld and Alter-Net for the headline.


January 17, 2014

Reproductive Rights Subject of SCOTUS, House

This past week, both the federal judicial and legislative systems addressed women’s reproductive rights. The one in Congress was a direct attack while the U.S. Supreme Court just questioned whether women’s reproductive rights should be protected. Last Wednesday, SCOTUS heard oral arguments in McCullen v. Coakley about the 35-foot safety buffer zones and Massachusetts law requires about reproductive health clinics. The purpose of these zones is to help patients, doctors, and other healthcare workers enter facilities without harassment, intimidation, and violence.

Twenty years ago, the ruling in Madsen v. Women’s Health Center made a safety buffer zone constitution after SCOTUS heard the Florida case. As Feminist Majority Foundation President Eleanor  Smeal said, “We know that buffer zones aid law enforcement and reduce violence. Surveys show that buffer zones decrease criminal activity and increase safe access to clinics.” The Massachusetts zone was enacted in 2000 following years of intimidation and violence, including the 1994 murders of two clinic receptionists—Shannon Lowney, 25, and Lee Ann Nichols, 38—by anti-choice extremist Joh Salvi at two separate Brookline (MA) clinics. Five other people were wounded in the attacks.

After anti-choice demonstrators continued to crowd clinic entrances, block cars from entering driveways, and intimidate people who wanted to enter the clinic, Massachusetts strengthened its law in 2007. The law has survived challenges in lower federal courts as judges found that the law is a content-neutral, narrowly tailored time-place-manner regulation that protects the public without infringing on the First Amendment rights of others. Many acts of violence, including murders, occur as people, including a volunteer clinic escort, enter the clinics. The buffer zone provides a line of defense.

The Massachusetts law doesn’t keep people from talking to the protesters, and the protesters are permitted to say anything they want. The objection from protesters is that they aren’t permitted to get into people’s faces—or perhaps to commit violence. The face of the protesters in the court is a sweet-looking grandmother, Eleanor McCullen, who says, “I should be able to walk and talk gently, lovingly, anywhere with anybody.”

Planned Parenthood ‘s amicus brief has a different picture. According to Amanda Marcotte:

“Protesters ‘wore Boston Police Department hats and shirts and stationed themselves, carrying clipboards, at the garage entrance,’ demanding that patients give them personal information. Protesters would attack clinic escorts with umbrellas. While the prior law disallowed directly approaching patients, anti-choicers would follow them around screaming invectives, often through bullhorns. When cops were called, the protesters argued that they were just following, not ‘approaching.’ The police department itself suggested a stronger buffer zone around the front door.”

Michelle Kinsey Bruns, a Virginia-based activist who has volunteered in clinic defense in eight states, said, “Patients know it’s going to be a gauntlet, and they approach it like a combat zone.” Lori Gregory-Garrott, an escort at the last abortion clinic in Mississippi, wrote about the daily battle just trying to get patients past a wall of hostile protesters even if the patients are only picking up their birth control prescriptions. Megan, a counselor at an independent Massachusetts clinic, talked about the accusations of murder and “going to hell” that she constantly hears.

The 35-foot zone about clinics where 90 percent of the work is primary care, contraception, cancer screening, and gynecological services is far less than those for funerals, political conventions, and polling places. Catholic University law professor Mark Rienzi, representing the anti-choice demonstrators in SCOTUS, claims, “Public sidewalks are places that people are supposed to be free to exchange information and exchange ideas.” Polling places require 150 feet, and, by federal law, funerals require 300 feet. A 252 X 98 foot plaza in front of the Supreme Court building is used as its buffer zone.

Justice Antonin Scalia was furious in 2000 after six of the nine judges ruled in favor of a buffer zone in Hill v. ColoradoHe furiously announced, “Our longstanding commitment to uninhibited, robust and wide-open debate is miraculously replaced by the power of the state to protect an unheard of right to be let alone on the public streets.” Except, of course, in the case of the plaza that protects him. This time, he objected to a lawyer’s characterization of the people as protesters,” asserting that the petitioners in this case “don’t want to protest . . . they want to talk to women about abortion.”  If this case were only about protesting, he continued, a thirty-five-foot buffer zone “might not be so bad.”

People at clinics without buffers have reported serious problems beyond being pushed out of the way and sprayed by some unknown liquid. In Alabama, volunteer and clinic escort Pamela Watters described both verbal and physical assaults including someone a protester from Virginia who pushed another volunteer, a great-grandmother, into a patient’s moving car.

When protesters blocked a clinic entrance in Chicago, the city passed an ordinance requiring that protesters stay eight feet away from patients if they are within 50 feet of the clinic entrance. Protesters are still harassing patients by wearing orange vests like the clinic escorts, giving baby booties in gift bags to patients, and videotaping patients.

At EMW Women’s Surgical Center of Louisville, one of the only two clinics in state, an average of 40 protesters line the sidewalks every day, a number that can swell to 100 if students from local bible colleges are bused in. They use megaphones, display signs with aborted fetuses pictures, and block open car doors so that patients can’t get out of their vehicles. The police don’t always show up if someone asks for their help. That’s what people call “freedom of speech” in reference to a lawful act of going into a women’s clinic. That’s what the highest justices in the land are discussing in the safety of their court.

The day before the Supreme Court heard the case about buffer zones, they declined to hear a case about the Arizona law preventing abortions after 18 weeks. The law stated 20 weeks after the woman’s last menstrual period, but the people who voted in favor of the law are apparently science knowledge-challenged. Conception comes about two weeks after menstruation. The Ninth Circuit Court of Appeals had ruled the law unconstitutional and permanently blocked its enforcement. SCOTUS’s refusal to hear an appeal means that the law has been struck down.

Two other defenses of pro-choice came this year when the justices refused to hear Oklahoma’s defense of two anti-choice measures. One would have prohibited the use of one drug that is used to induce an abortion in the first weeks of a pregnancy, and a second would have required costly ultrasound tests for women seeking an abortion.

While SCOTUS works on clinic buffer zones, the House Judiciary Committee hearing spent last week trying to figure out how to keep middle-class consumers from getting health care subsidies if their plans include abortion coverage in H.R. 7.

H.R. 7 men

The committee takes pride in H.R. 7 as a “pro-jobs” bill. Chair Bob Goodlatte (R-VA) said:

“[It is] very, very true that having a growing population and having new children brought into the world is not harmful to job creation. It very much promotes job creation for all the care and services and so on that need to be provided by a lot of people to raise children.”

This isn’t the only crazy conservative reason to block all abortions. Rick Santorum said during his presidential run that having children makes the Social Security fund solvent. Former GOP-supporter Sen. Zell Miller (D-GA) said in 2007 that he wants women to have babies to “fill our Army.”

The next time that House Speaker John Boehner (R-OH) claims that the House is enacting “jobs bills,” check to see exactly what these are. As for the buffer zones, Eileen Shim got it right: “If abortion clinic protesters weren’t such bullies, we wouldn’t need buffer zones.”


November 16, 2013

Progressives Decide to Move Forward

While House Speaker John Boehner (R-OH) sits on all potential legislation such as immigration reform, non-discrimination, etc., the rest of the world is moving forward to make life better for people. Here are some recent actions:

The Sacramento Superior Court defended California’s clean energy economy by upholding California’s cap-and-trade program. Business interests opposed the law, but the court supported the state’s position that auctioning carbon permits holds polluters accountable for making an adverse impact on the climate. The first four “auctions” raised $395 million for the state, and the fifth one is due this coming week.

In two different cases, Mutual Pharmaceuticals v. Bartlett (2011) and Pliva v. Mensing  (2013), the U.S. Supreme Court ruled that makers of generic drugs could not warn people of the dangers associated with their drugs because they had to copy the brand-name drug label, per FDA mandates. The FDA policy and Supreme Court decisions eliminated any incentive for generic drug makers to investigate and report safety problems related to their products, about 84 percent of the medication market, by giving them total immunity.

Recently, differences between generics and brand-names, such as Wellbutrin and its generics, resulted in several generics being pulled from the market because the generics are not equivalent to the brand-name drugs. For example, stories about problems surrounding Wellbutrin generics were in the media for at least six years before the FDA ruled that the generic was not equivalent.

The good news: After extensive petitioning, the FDA proposes revising its 1992 ruling to requiring changes in generic drug labels listing dangers not provided in labels for brand-name drugs. If generic drug makers present a valid case for changes in the labeling, the FDA may permit this information on the labels. Generic drug manufacturers could also distribute “Dear Health Care Provider” letters. The U.S. Chamber of Commerce expressed concern that the change would create new liability standards for generic drug manufacturers under the same failure-to-warn standards that have resulted in huge fines for many branded drug manufacturers. The FDA is providing 60 days for public and industry input regarding the changes in the rules before they could go into effect.

Public Citizen, which worked to petition the FDA regarding labeling rules, has also issued a report about the construction of the Keystone XL pipeline in Oklahoma and Texas just weeks before the 485-mile-long pipeline is supposed to have 700,000 barrels of diluted bitumen pumped through it daily. Members of Public Citizen who walked a 250-mile stretch documented and photographed engineering code violations and approximately 125 “anomalies” of dents, sags, peeling patches, and other problems.

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Public Citizen has called for a U.S. Pipeline and Hazardous Material Safety Administration (PHMSA) investigation into its findings. The organization has also requested that Congress and the White House delay any pipeline use until a government investigation is complete.

Martin Bashir has called out Sarah Palin about her comparison between slavery and the national debt. Although right-wingers accuse Bashir of being a misogynist, I think he’s a hero for his history lesson, using the diary of plantation overseer Thomas Thistlewood to describe the brutality and inhumanity of slavery in Colonial America.  

In 1756, Thistlewood recorded that a slave named Darby “catched eating kanes had him well flogged and pickled, then made Hector, another slave, s-h-i-t in his mouth.” The overseer’s punishment became known as “Darby’s Dose.” The diary also described treatment for a man he called Punch. “Flogged punch well, and then washed and rubbed salt pickle, lime juice and bird pepper, made Negro Joe piss in his eyes and mouth.”

The liberal wing of the Senate is moving forward while GOP senators filibuster the three women nominated for the U.S. Court of Appeals for the D.C. Circuit: Nina Pillard, Patricia Millett, and Caitlin Halligan. GOP senators accused the women accused of “militant feminism” because of their work for women’s rights. (Misogyny?)

Democratic senators have introduced the Women’s Health Protection Act of 2013 that would prevent states from passing TRAP laws. Targeted Regulations of Abortion Providers attempt to stop abortion access in 45 states by creating frivolous regulations such as specific dimensions for clinic restrooms and mandates that doctors performing abortions have privileges at nearby hospitals. These state laws, some of them overturned by courts, have closed 54 women’s clinics, 12 of them in Texas. That state’s reduction in funding closed another 50 family planning clinics.

Democratic Sens. Richard Blumenthal (CT), Barbara Boxer (CA), Tammy Baldwin (WI) introduced the bill in the upper chamber. Reps. Judy Chu (CA), Marcia Fudge (OH), and Lois Frankel (FL) brought the bill to the House. The last time that Congress passed proactive legislation protecting abortion access was the Freedom of Access to Clinic Entrances Act in 1994.

Another Senate bill extends the life of Social Security and improves its benefits. Democrats Sherrod Brown (OH),Tom Harkin (IA), Brian Schatz (HI), and Mark Begich (AK) are sponsoring the Strengthen Social Security Act of 2013:

Strengthen Benefits by Reforming the Social Security Benefit Formula:  By changing the way that SS benefits are calculated, the average increase per person would by about $70 per month with those in low- and middle-income levels targeted.

Ensure that Cost of Living Adjustments Adequately Reflect the Living Expenses of Retirees: A change in the calculation of Cost of Living Adjustments (COLA) would also create an increase in SS benefits. At this time, the COLA is tied to the Consumer Price Index (CPI) inflation, using items that do not correctly reflect purchases that seniors make, such as medical care. The bill bases future COLAs on the CPI for the Elderly (CPI-E), an experimental index that the Bureau of Labor Statistics (BLS) has been keeping since 1982.

Improve the Long Term Financial Condition of the Trust Fund: According to the most recent Social Security Trustees report, the Trust Fund can pay full benefits through 2033, another 20 years. The proposed change is phasing out the current taxable cap of $113,700 so that the wealthiest Americans contribute to the program the same share of their income as the middle class.

Republicans may not vote for these bills, but they’ll be forced to show that they vote against women and senior citizens.



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