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ACLU: Black Lives Matter Is Still Here — And Avoiding the Mistakes of Their Predecessors

Black Lives Matter Is Still Here — And Avoiding the Mistakes of Their Predecessors
BLM’s decentralized movement goes far beyond the impact of a few major leaders — and that is the way the founders planned it.

This piece originally appeared at Newsweek

The fifth anniversary of the founding of Black Lives Matter makes me think back 50 years, not five. Shortly before he was killed, Martin Luther King lamented that the gains of the civil rights movement had come at “bargain rates” because it cost America nothing to integrate lunch counters and buses or give Blacks the right to vote.

King knew that the real fight — against systemic forces such as the criminalization of African-Americans — lay ahead. As a 10-year-old growing up in Memphis, Tennessee, I did not understand — I just saw what looked like visible progress until King was killed, and it seemed like the progress not only stopped, it rolled back. 

The young activist started at 26 and was dead at 39. Richard Nixon’s nefariously designed “war on drugs” came next, fueling the over-policing and mass incarceration of Black bodies. Fifty years later, we are in the middle of another attempt to reckon with our national failure to achieve real and sustainable progress toward racial justice.

Five years ago, a group coalesced around the leadership of Patrisse Khan–Cullors, Alicia Garza, and Opal Tometi, and Black Lives Matter came into being. National awareness of issues around policing in America has grown significantly since then because BLM and other community-based organizations are forcing America to take a clear look at what we are really doing in the name of “policing” in Black and brown communities.

Their public actions are visible. They were leaders in making sure that America knew the names Trayvon Martin, Tamir Rice, Tanisha Anderson, Mya Hall, Walter Scott, Sandra Bland. They have disrupted our everyday lives by making us focus on the everyday lives of people who live with policing based on pro-active racial profiling.

They have led in redefining leadership of community-based movements by recognizing and addressing gaps in movement spaces and leadership for women, queer, and transgender people and those who have moved the work forward in the background with little or no recognition.

This has given the movement brilliant leaders and strategists. It is one of the foundations of sustainable community-based power. Some of their work is visible, some is not. After many Americans were shocked by the video of a police officer throwing a girl from her desk in a South Carolina classroom, the ACLU wanted to expand its work fighting the school-to-prison pipeline by challenging a South Carolina law that made it a crime to “disturb schools.”

This law was used to charge a girl in the classroom with a crime for simply standing up and demanding that the officer stop physically abusing her classmate. The ACLU was interested in litigation challenging provisions of this law. BLM activists put us in contact with the young woman who was physically abused by the officer. They set up a community meeting on a Sunday where community members came to talk about what was happening to their children in school.

The people who came to share their stories included the family of our client in the lawsuit, Niya Kenny. BLM activists helped connect the legal challenge to sustained organizing in the community and provided mentorship and support for our client and the young woman assaulted by the officer.

As a result of the ACLU lawsuit, the state of South Carolina repealed the challenged provisions of the law. No child in South Carolina will be charged with a crime for “disturbing” their classroom. Niya Kenny has drawn on the courage she showed in her classroom to continue fighting to make a difference in the community. She is now working with the same BLM activist who organized that first meeting, advocating for Black girls and encouraging their leadership.

The lawsuit and victory for South Carolina’s children would not have happened in this way without BLM. Today, we continue the fight for racial justice — whether challenging racist stop-and-frisk laws or elevating the stories of Black and brown people targeted by 911 vigilantes — and remain inspired by BLM’s work.

As I look back, I see similarities between the civil rights movement 50 years ago and BLM today. At both points in history, the leadership was intelligent, charismatic, and powerful, but today there is an emphasis on a much broader base of leadership. BLM’s decentralized movement goes far beyond the impact of a few major leaders — and that is the way Ms. Khan-Cullors, Ms. Garza and Ms. Tometi planned it.

Constrained by the prevailing social mores of the larger society, the movement of the mid-20th century kept too many on the margins. Take for example the treatment of Black queer activists like Bayard Rustin, who was the mastermind behind King’s March on Washington but, due to homophobia, was relegated to obscurity. Likewise, visionary Black women like the legal scholar Pauli Murray battled misogyny within the movement that couldn’t have existed without them.

Today, there is much to learn from the way that BLM has pushed past mere discussions about diversity and inclusion to take concrete action on these principles internally and in their work. Learning from the shortfalls of the ’50s and early ’60s, BLM activists are keenly alert to “bargain basement” gains and politics of respectability that won’t address core issues of racism in America.

Five years is but a minute in the fight for racial justice, but with BLM’s still unfolding narrative, I’m already compelled to stay for the whole movie — it looks like it could be special.

Published July 16, 2018 at 04:30PM
via ACLU https://ift.tt/2LdXgPi

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ACLU: The Supreme Court’s Disingenuous Funeral Ceremony for Korematsu

The Supreme Court’s Disingenuous Funeral Ceremony for Korematsu
Instead of truly putting Korematsu to rest, the Muslim ban decision revived that shameful decision under another name.

Over Independence Day weekend, I joined hundreds of fellow Japanese-Americans at the Tule Lake Pilgrimage. Held on the site of the Tule Lake Segregation Center, this pilgrimage offers a chance to remember how the U.S. government imprisoned our families without trial during World War II.

President Franklin D. Roosevelt provided the legal authority for this incarceration by signing Executive Order 9066, which directed military officials to “prescribe military areas . . . from which any or all persons may be excluded.” The language of the order was facially neutral, in that it named no particular ethnic groups. However, everyone involved in its drafting and implementation knew it would target people of Japanese ancestry, both U.S.-born citizens and noncitizen immigrants.

In the ensuing weeks and months, Lt. General John L. DeWitt — an avowed racist who famously declared that “a Jap’s a Jap” regardless of citizenship — designated large swaths of Arizona, California, Oregon, and Washington as “military areas” from which Japanese-Americans would be “excluded” by force. As a result, my grandmother Bette — a 23-year-old aspiring fashion designer from a small California town — was forced to interrupt her junior college education to be imprisoned with her parents and siblings at the Tule Lake prison camp. They were assigned to tarpaper barracks to live behind barbed wire under the watch of armed guards. Meanwhile, my grandfather Kuichi — who had actually been drafted into the U.S. Army before Pearl Harbor — was left in an uncomfortable limbo while military authorities decided what to do with this newly enlisted soldier who happened to be of an “enemy alien” race. Eventually, they ordered him to join the fight in Europe.

In the years that followed, a handful of Japanese-Americans pursued legal challenges to the various orders that Lt. General DeWitt issued under EO 9066, including curfews, travel restrictions, and ultimately the roundup and incarceration of Japanese-Americans. The first to be decided by the Supreme Court were Yasui v. United States and Hirabayashi v. United States in 1943, which approved the race-based curfews. The last were its 1944 decisions in Ex Parte Endo, which avoided deciding the constitutional question, and Korematsu v. United States, which approved the final roundup as constitutional. Writing for the majority in Korematsu, Justice Black asserted:

“To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire.”

Three justices saw the folly and danger of this blinkered approach. Justice Roberts characterized the case as “a clear violation of Constitutional rights.” Justice Murphy described the racist origins of the orders and wrote bluntly: “I dissent, therefore, from this legalization of racism.” And Justice Jackson wrote a prescient warning about the dangers of “a judicial opinion [that] rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order.” Once racial discrimination has been validated by the highest court, that principle “then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

Meanwhile, at least 331 people died while incarcerated at Tule Lake under the authority of EO 9066. Those not cremated were buried in a cemetery inside the camp’s perimeter. It is not possible to visit that cemetery today. After the war, local residents bulldozed the graveyard and used the soil and bones as construction fill. All that remains is a lumpy depression in the ground, next to what is now the county dump.

I read the Supreme Court’s decision in Trump v. Hawaii, the lawsuit challenging the third iteration of Trump’s Muslim ban, on my way to the Tule Lake Pilgrimage. And I could not stop thinking about that graveyard and its desecration.

In Trump, the court upheld the Muslim ban despite overwhelming evidence that it was motivated by anti-Muslim prejudice. Yet the court simultaneously repudiated Korematsu v. United States, writing that the 1944 decision “was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’” But this did not truly lay Korematsu to rest.

The Supreme Court justices who signed the majority opinion may believe their words buried Korematsu in the graveyard of history. But Korematsu was already resting in a shallow grave and nearly completely repudiated. What they actually did was to deliver a eulogy even as they disinterred its bones and infused its spirit into another injustice.

In Trump, Chief Justice Roberts contended it is “wholly inapt” to liken the “forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race” to the Trump administration’s “facially neutral policy denying certain foreign nationals the privilege of admission.” Yet the mental gymnastics that the Trump court went through to avoid finding religious animus are virtually the same as those the Korematsu court employed to avoid finding racial animus.

As Justice Sotomayor wrote in dissent:

“By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

Moreover, as legal scholar Eric Muller has written, the narrowness of the court’s repudiation of Korematsu leaves the identical reasoning of Hirabayashi (holding that the race-based curfew was “not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant”) intact and free to be cited by future decisions.

Thus, the Supreme Court’s disingenuous funeral ceremony for Korematsu gives me no comfort as a Japanese-American. Instead of truly putting Korematsu to rest, the Muslim ban decision revived Korematsu under another name. And the re-animated spirits of Korematsu and the other Japanese-American incarceration decisions will continue to roam American jurisprudence until Trump receives its own funeral rites.

Published July 13, 2018 at 06:45PM
via ACLU https://ift.tt/2LfpgyM

ACLU: Dear Brett Kavanaugh, Justices Do Make Law

Dear Brett Kavanaugh, Justices Do Make Law
The Supreme Court nominee says judges ‘must interpret the law, not make’ it. He’s wrong. Here’s why.

Judges “must interpret the law, not make the law,” observed Judge Brett Kavanaugh in accepting Donald Trump’s designation to fill Justice Anthony Kennedy’s seat on the Supreme Court.  This oft-repeated assertion is an invention of conservatives who seek to criticize and curtail rights-enhancing decisions of the Supreme Court. But the assertion that judges should not make law rests upon a fundamental misunderstanding of the role of judges within our common law tradition.

It is a hallmark of our common law system that judges not only resolve the controversies before them but, in doing so, write opinions that explain their decisions and identify the legal principles and factual conclusions upon which the decisions rest. These opinions are designed to persuade the litigants and the public that the case was decided fairly and in accordance with law. But the written opinions also serve as a source of law for future controversies. In this way, common law courts resolve individual disputes and, at the same time, issue opinions that create legal precedent which guides future behavior and informs subsequent adjudications. 

In writing opinions that will serve as precedent and in relying on precedent as a source of law, the Supreme Court functions as a common law court. The justices of the court who write these opinions are unquestionably engaged in making law, not merely in applying law.

By way of example, the entire body of law regarding freedom of expression has been created by the Supreme Court. The First Amendment provision pertaining to freedom of speech and press reads: “Congress shall make no law abridging freedom of speech or of the press ….” The text seems clear. But reading the text alone fails to capture the scope of the provision. We know, because the Supreme Court has told us, that “no law” does not really mean “no law.” And the proscriptions of the First Amendment are not limited to “Congress.”  They apply, as well, to the executive branch and to state and local governments. Moreover, the First Amendment extends its protective reach beyond “speech” and “press” as it also guards against government censorship of movies, artwork, the internet, and other forms of expression. 

These deviations from the text of the First Amendment and the expansion of free expression beyond its narrow words were accomplished entirely by judicial lawmaking. The First Amendment doctrine against “prior restraint” that was invoked in the Pentagon Papers case was a creature of judicial lawmaking. So too were the principles of “symbolic speech” that allowed a student to wear a black armband to class in protest of the Vietnam War; and the general prohibition of “vague” enactments that secured the free speech rights of civil rights marchers in Birmingham, Alabama; and the presumption against “content-discrimination” that protected the Brooklyn Museum from the censorship efforts of former Mayor Giuliani. In fashioning each of these legal doctrines the court was making law. 

Judicial lawmaking is not unrestrained; nor should it be. But the restraints come from well-accepted protocols of the judicial process. They come from the obligation to defend judicial decisions in publicly issued opinions, from the need to rest the decisions upon careful fact-finding based on publicly-disclosed evidence, and from the requirement that the decisions reflect reasoned outcomes drawn from legal principles. Respect for judicial precedent also provides an important restraining influence. 

Moreover, when engaged in the adjudicative process, judges do not ignore the textual provisions they are considering. Indeed, the text is generally the starting point for any analysis, and judges try to capture the intent of the authors of the text where possible. But a complete judicial analysis must extend beyond text and beyond any original understanding of the text to a recognition of the policies served by the text and an application of the principles that emerge from the text. 

The problem is not that judges engage in lawmaking. It is that, occasionally, when measured against the requirements of the craft, they do a bad job of it, as Justice Scalia demonstrated when, in interpreting the right-to-bear-arms under the Second Amendment, he ignored precedent and cherry-picked history to reach a deeply wrong-minded conclusion. Scalia’s opinion in that case demonstrates that conservative as well as liberal judges engage in the lawmaking process under our common law system. 

The genius of the common law system is that it provides both stability and flexibility as the law develops to address new circumstances. As applied to constitutional controversies, the process allows our foundational document to evolve and adapt. Kavanaugh’s claim that judges should “interpret” but not “make law” represents a crude and erroneous attempt to constrain this notion of the Constitution as a living document. 

Since judicial interpretation often involves lawmaking, his claim rests upon a false dichotomy. It is one that misleads the American people regarding the proper role of the Supreme Court. And it invites unfair disparagement of the court when it pursues its historic obligation to adapt fundamental principles of liberty and equality to the needs of an evolving social culture.

Published July 13, 2018 at 01:15PM
via ACLU https://ift.tt/2zCNvph

ACLU: The Supreme Court Doesn’t Have to Overturn Roe to Decimate Abortion Rights

The Supreme Court Doesn’t Have to Overturn Roe to Decimate Abortion Rights
A new Supreme Court could effectively decimate women’s access to abortion, even without overturning Roe outright.

Now that President Donald Trump has nominated Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, it will be up to the Senate to fully vet him so that the American people can determine whether he will uphold the basic civil rights and liberties relied on by everyone in this country. This is particularly true when it comes to abortion rights, where Kavanaugh’s prior opinions on the subject, coupled with the fact that Donald Trump vowed to only nominate justices who would overturn Roe v. Wade, give rise to serious concern about women’s continued ability to access abortion if Kavanaugh is confirmed. 

The ACLU as a matter of policy does not endorse or oppose nominees to the Supreme Court. But we do think it’s essential, given Trump’s promise, that any nominee is questioned extensively and directly about their commitment to the 45-year-old precedent of Roe v. Wade. 

Some background is in order. Roe v. Wade made abortion legal in all 50 states by holding that politicians cannot constitutionally ban abortion — except after the point in pregnancy at which the fetus could survive outside the woman’s body. The 1973 decision nullified abortion bans across the country, but it provided imperfect protection for abortion access. Shortly after the decision, the Supreme Court held that politicians may exclude abortion coverage from Medicaid and may require parental or judicial involvement in a minor’s abortion decision. Those rulings cruelly placed abortion out of reach for many people — especially low-income women and, disproportionately, women of color. 

Then, in 1992, in Planned Parenthood v. Casey, the Supreme Court opened the door to myriad additional restrictions on abortion access. In that decision, the court reaffirmed the core holding of Roe — that politicians cannot ban abortion — but ruled that states may restrict abortion as long as those restrictions do not impose an “undue burden” on a woman’s access. 

And restrict it they did: Since 2011, politicians have quietly passed more than 400 abortion restrictions. These include laws that shut down all or most of the clinics in a state under the guise of promoting women’s health. Where possible, women, medical providers, and advocates have challenged these laws — and in many cases, lower courts weighed in on their side. In a critical decision, so did the Supreme Court. 

In Whole Woman’s Health v. Hellerstedt, the Supreme Court in 2016 struck down two such laws out of Texas: one law that banned abortion unless the physician had admitting privileges at a local hospital, and another that required that physicians perform the procedure in a mini-hospital called an ambulatory surgical center. The five-justice majority, which included Justice Kennedy, relied on the undue burden standard articulated in Casey and ruled that these restrictions were an unconstitutional undue burden because they did nothing to safeguard patient health while shutting down three-quarters of the clinics in the state. 

Despite that decision, states across the country continue to pass and defend laws that fail the standard articulated in Roe, Casey, and Whole Woman’s Health. Arkansas and Missouri, for example, are defending laws indistinguishable from the Texas laws the Supreme Court struck down in 2016. But legal advocates have been able to use the Whole Woman’s Health decision to challenge other restrictions, which federal courts have struck down in multiple states. 

Where does that leave us today?

If the Senate confirms a Supreme Court nominee who shifts the balance on the court, and the court overturns Roe v. Wade, many states will ban abortion. By some counts, almost half the states would do so. Seventeen states already have laws on the books to accomplish this swiftly if the Supreme Court overturns Roe

We would then have a legal patchwork in which large swaths of the South and Midwest lack abortion access, with no recourse to federal courts. Certain state constitutions would provide protections, as we saw in Iowa, where the state Supreme Court just relied on the state constitution to block a ban on abortion starting at six weeks of pregnancy. But in most of the states where politicians seek to end abortion access, such state constitutional protections are the exception. 

Congress, too, could ban abortion. If that happened, we would not have a “patchwork” of access: A federal ban would end abortion throughout the nation, and there is nothing states could do to make the practice legal within their borders. While there are not currently enough votes in Congress to ban abortion nationwide, only time will tell who goes to Washington in 2018, 2020, and beyond.

But a new Supreme Court Justice could effectively decimate women’s access to abortion, even without overturning Roe outright. A new Supreme Court could uphold nearly unlimited state restrictions — including the kind of clinic shut-down laws from Texas that the court struck down in 2016. In upholding them, the court could say that it is simply applying the longstanding undue burden standard but deferring to legislative determinations of what is medically justified. In that way, the court would end abortion within the states that pass them — as surely as if the court had overturned Roe and allowed politicians to ban abortion explicitly.

In seven states, there is just a single women’s health center left providing abortion care. The only thing stopping politicians in those states from shuttering those clinics with faux health regulations is the federal judiciary, and if the balance on the Supreme Court shifts against abortion rights, there will be nothing stopping them. 

One need look no farther than Texas to understand the staggering impact of this scenario. In 2015, politicians’ draconian, pretend health restrictions shuttered more than half the state’s clinics. Women had to wait weeks for an appointment, drive hundreds of miles or to another state, take more days off work, lose income, find childcare, and arrange and pay for transportation. For many, the process of obtaining safe and legal health care became an onerous, grueling feat — or just flat-out impossible.

Overturning Roe would be catastrophic, but it is not the only scenario in which politicians would be able to shut down abortion care. The court can give them back the power to do so by simply upholding whatever obstacles they throw in a woman’s path.

Brett Kavanaugh and the case of Jane Doe

There is cause for concern that Judge Kavanaugh could do just that. President Trump promised to select justices who would overturn Roe, so even if he did not directly ask Kavanaugh that question, his selection presumably means that the president has reason to believe he would be open to doing so

Moreover, in the one case Kavanaugh has decided involving abortion, he vacated an order directing that a young woman be allowed to access abortion while in government custody. The ACLU represents Jane Doe, a 17-year-old undocumented woman who came to this country without her parents, was detained by the federal government, and was living in a shelter. While in federal custody, she found out she was pregnant and requested an abortion, but the Trump administration refused to allow her to have one.  

After she had been delayed several weeks, a federal court ordered the administration to allow her to get the procedure. The administration appealed and Judge Kavanaugh wrote an opinion that allowed the government to continue to block her from having an abortion for 11 days while the government continued their weeks-long search for a sponsor to whom she could be released (at which point she could get the abortion while no longer in government custody). If no sponsor was approved by that point, Judge Kavanaugh ruled that Jane Doe could go back to the lower court to ask the court to re-enter the order directing the government to allow her to access abortion, but he indicated that that decision could be appealed, further delaying her abortion. 

In short, he was willing to tolerate weeks of delay where a woman had decided to obtain an abortion, which pushed her further into her pregnancy against her will. The full panel of the D.C. Circuit quickly reversed Judge Kavanaugh’s opinion, and Jane Doe was able to obtain her abortion. 

Given this history and Trump’s promise, it’s imperative that senators press Brett Kavanaugh on whether he intends to protect a woman’s right to real access to abortion. If they don’t do their job, the impact could well be dire, and marginalized communities will pay the steepest price. 

Published July 10, 2018 at 06:30PM
via ACLU https://ift.tt/2L1zWEp

ACLU: The Supreme Court Doesn’t Have to Overturn Roe to Eviscerate Abortion Rights

The Supreme Court Doesn’t Have to Overturn Roe to Eviscerate Abortion Rights
A new Supreme Court could effectively decimate women’s access to abortion, even without overturning Roe outright.

Now that President Donald Trump has nominated Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, it will be up to the Senate to fully vet him so that the American people can determine whether he will uphold the basic civil rights and liberties relied on by everyone in this country. This is particularly true when it comes to abortion rights, where Kavanaugh’s prior opinions on the subject, coupled with the fact that Donald Trump vowed to only nominate justices who would overturn Roe v. Wade, give rise to serious concern about women’s continued ability to access abortion if Kavanaugh is confirmed. 

The ACLU as a matter of policy does not endorse or oppose nominees to the Supreme Court. But we do think it’s essential, given Trump’s promise, that any nominee is questioned extensively and directly about their commitment to the 45-year-old precedent of Roe v. Wade. 

Some background is in order. Roe v. Wade made abortion legal in all 50 states by holding that politicians cannot constitutionally ban abortion — except after the point in pregnancy at which the fetus could survive outside the woman’s body. The 1973 decision nullified abortion bans across the country, but it provided imperfect protection for abortion access. Shortly after the decision, the Supreme Court held that politicians may exclude abortion coverage from Medicaid and may require parental or judicial involvement in a minor’s abortion decision. Those rulings cruelly placed abortion out of reach for many people — especially low-income women and, disproportionately, women of color. 

Then, in 1992, in Planned Parenthood v. Casey, the Supreme Court opened the door to myriad additional restrictions on abortion access. In that decision, the court reaffirmed the core holding of Roe — that politicians cannot ban abortion — but ruled that states may restrict abortion as long as those restrictions do not impose an “undue burden” on a woman’s access. 

And restrict it they did: Since 2011, politicians have quietly passed more than 400 abortion restrictions. These include laws that shut down all or most of the clinics in a state under the guise of promoting women’s health. Where possible, women, medical providers, and advocates have challenged these laws — and in many cases, lower courts weighed in on their side. In a critical decision, so did the Supreme Court. 

In Whole Woman’s Health v. Hellerstedt, the Supreme Court in 2016 struck down two such laws out of Texas: one law that banned abortion unless the physician had admitting privileges at a local hospital, and another that required that physicians perform the procedure in a mini-hospital called an ambulatory surgical center. The five-justice majority, which included Justice Kennedy, relied on the undue burden standard articulated in Casey and ruled that these restrictions were an unconstitutional undue burden because they did nothing to safeguard patient health while shutting down three-quarters of the clinics in the state. 

Despite that decision, states across the country continue to pass and defend laws that fail the standard articulated in Roe, Casey, and Whole Woman’s Health. Arkansas and Missouri, for example, are defending laws indistinguishable from the Texas laws the Supreme Court struck down in 2016. But legal advocates have been able to use the Whole Woman’s Health decision to challenge other restrictions, which federal courts have struck down in multiple states. 

Where does that leave us today?

If the Senate confirms a Supreme Court nominee who shifts the balance on the court, and the court overturns Roe v. Wade, many states will ban abortion. By some counts, almost half the states would do so. Seventeen states already have laws on the books to accomplish this swiftly if the Supreme Court overturns Roe

We would then have a legal patchwork in which large swaths of the South and Midwest lack abortion access, with no recourse to federal courts. Certain state constitutions would provide protections, as we saw in Iowa, where the state Supreme Court just relied on the state constitution to block a ban on abortion starting at six weeks of pregnancy. But in most of the states where politicians seek to end abortion access, such state constitutional protections are the exception. 

Congress, too, could ban abortion. If that happened, we would not have a “patchwork” of access: A federal ban would end abortion throughout the nation, and there is nothing states could do to make the practice legal within their borders. While there are not currently enough votes in Congress to ban abortion nationwide, only time will tell who goes to Washington in 2018, 2020, and beyond.

But a new Supreme Court Justice could effectively decimate women’s access to abortion, even without overturning Roe outright. A new Supreme Court could uphold nearly unlimited state restrictions — including the kind of clinic shut-down laws from Texas that the court struck down in 2016. In upholding them, the court could say that it is simply applying the longstanding undue burden standard but deferring to legislative determinations of what is medically justified. In that way, the court would end abortion within the states that pass them — as surely as if the court had overturned Roe and allowed politicians to ban abortion explicitly.

In seven states, there is just a single women’s health center left providing abortion care. The only thing stopping politicians in those states from shuttering those clinics with faux health regulations is the federal judiciary, and if the balance on the Supreme Court shifts against abortion rights, there will be nothing stopping them. 

One need look no farther than Texas to understand the staggering impact of this scenario. In 2015, politicians’ draconian, pretend health restrictions shuttered more than half the state’s clinics. Women had to wait weeks for an appointment, drive hundreds of miles or to another state, take more days off work, lose income, find childcare, and arrange and pay for transportation. For many, the process of obtaining safe and legal health care became an onerous, grueling feat — or just flat-out impossible.

Overturning Roe would be catastrophic, but it is not the only scenario in which politicians would be able to shut down abortion care. The court can give them back the power to do so by simply upholding whatever obstacles they throw in a woman’s path.

Brett Kavanaugh and the case of Jane Doe

There is cause for concern that Judge Kavanaugh could do just that. President Trump promised to select justices who would overturn Roe, so even if he did not directly ask Kavanaugh that question, his selection presumably means that the president has reason to believe he would be open to doing so

Moreover, in the one case Kavanaugh has decided involving abortion, he vacated an order directing that a young woman be allowed to access abortion while in government custody. The ACLU represents Jane Doe, a 17-year-old undocumented woman who came to this country without her parents, was detained by the federal government, and was living in a shelter. While in federal custody, she found out she was pregnant and requested an abortion, but the Trump administration refused to allow her to have one.  

After she had been delayed several weeks, a federal court ordered the administration to allow her to get the procedure. The administration appealed and Judge Kavanaugh wrote an opinion that allowed the government to continue to block her from having an abortion for 11 days while the government continued their weeks-long search for a sponsor to whom she could be released (at which point she could get the abortion while no longer in government custody). If no sponsor was approved by that point, Judge Kavanaugh ruled that Jane Doe could go back to the lower court to ask the court to re-enter the order directing the government to allow her to access abortion, but he indicated that that decision could be appealed, further delaying her abortion. 

In short, he was willing to tolerate weeks of delay where a woman had decided to obtain an abortion, which pushed her further into her pregnancy against her will. The full panel of the D.C. Circuit quickly reversed Judge Kavanaugh’s opinion, and Jane Doe was able to obtain her abortion. 

Given this history and Trump’s promise, it’s imperative that senators press Brett Kavanaugh on whether he intends to protect a woman’s right to real access to abortion. If they don’t do their job, the impact could well be dire, and marginalized communities will pay the steepest price. 

Published July 10, 2018 at 06:30PM
via ACLU https://ift.tt/2ubuUvn