Economic inequality

  • June 4, 2015
    Guest Post

    by Jill Adams, Executive Director, Center on Reproductive Rights and Justice, University of California, Berkeley School of Law

    *This post is part of ACSblog’s symposium honoring the 50th anniversary of Griswold v. Connecticut.

    When it comes to our most intimate experiences and decisions, the right to privacy should arm the many, not just shield the few who can afford to pay for it.  We’ve learned in the years since Griswold v. Connecticut that privacy is not a panacea for the fulfillment of all people’s sexual and reproductive rights.  The right to privacy has not granted secure and reliable respect for decisions we make in our bedrooms and about our bodies.  This is especially disappointing in a country that places such a legal and cultural premium on matters of autonomy and individualism – particularly in the private sphere.

    Cast in the mold of Griswold’s privacy-based right to use contraception, the right to choose abortion declared in Roe v. Wade similarly presents an important avenue but imperfect vehicle for everyone’s guaranteed arrival at reproductive self-determination.  Courts have allowed the proliferation of countless contractions, exemptions, and restrictions on the rights to abortion and contraception, siphoning power out of the hands of individuals wishing to exercise their reproductive rights and into the hands of states, corporations, and institutions wishing to constrain or control them.

     
    Is privacy really a “right” if you can’t afford to exercise it?
     
    The abstract right to use reproductive health services  free from governmental interference rings hollow without the necessary, enabling conditions to ensure access to such services and the ability to make decisions about them free from coercion by person, system, or circumstance.  For low-income people, and other marginalized populations, the right to privacy may merely be a right on paper if it is not a right they can actually afford to exercise.
  • April 21, 2015

    by Jeremy Leaming

    Sheryl Sandberg and Anne-Marie Slaughter have drawn much attention for their thoughts about the professional working lives of women.  But Sandberg and Slaughter have failed to recognize or willfully ignored the stations of the vast majority of working women – those women who do not have the luxury of “opting out” or “leaning in.”  The inadequacies of our workplace laws leave many working women behind and perpetually struggling to survive.

    American Constitution Society for Law and Policy (ACS) President Caroline Fredrickson, a former labor lawyer and a longtime leader in the legal progressive community, declares a powerful response to “leaning in,” or “opting out,” which dominate discussion of inequalities facing women in the workforce.

    The discussion of workplace equality for women now focuses almost exclusively on white-collar professionals.  This discussion needs broadening.

    Fredrickson’s compelling book, Under the Bus: How Working Women Are Being Run Over, tells the stories of many women, who do not have the protection of our laws or the ability to stand up to their employers’ often illegal demands.  Indeed, for too long many employers have ignored or been exempted from laws meant to protect workers against corporate malfeasance.  Fredrickson also notes the inadequacy of our laws is ingrained in a history riven with racial and gender biases.  Time after time, Fredrickson notes that historical progressive movements to improve the lives of working Americans have left women behind.  If our nation fails to embrace collective solutions to collective problems, inequality will continue to fester in America while democracy suffers.

  • April 3, 2015
    Guest Post

    by Nicole Huberfeld, H. Wendell Cherry Professor of Law, University of Kentucky

    The Supreme Court recently decided Armstrong v. Exceptional Child Center, a low-profile case that could strike at the heart of the Medicaid program, a federal program that provides funding to states to facilitate mainstream medical care for low-income Americans. The Medicaid Act contains requirements that states must obey to receive federal funding, one of which is called the equal access provision, or "30(A)".  This provision requires states to ensure that “payments . . . are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” Historically, Medicaid payment rates are lower than private insurance or Medicare rates, despite the 30(A) requirement for sufficient payment.

    Additionally, the Medicaid Act does not provide explicit remedies for state failures in the program, other than authorizing the Department of Health and Human Services (HHS) to withdraw federal funding.  Thus, over the years, health care providers and patients have brought private enforcement actions under the civil rights statute known as Section 1983 or under the Supremacy Clause of the U.S. Constitution to enforce statutory rights under the Medicaid Act.  Section 1983 actions have been limited by the Supreme Court.  Consequently, health care providers and Medicaid beneficiaries turned to the Supremacy Clause, seeking injunctive relief against states under the theory that states violate federal law when they fail to pay sufficient reimbursement rates to ensure equal access.  Two years ago, the Court nearly eliminated Supremacy Clause actions in Douglas v. Independent Living Center, but deference to agency decision making ultimately stayed the Court’s hand.

    Armstrong has done what the dissent in Douglas would have.  Justice Scalia’s majority opinion pointedly began by noting that states agree to spend federal funds "in accordance with congressionally imposed conditions."  The majority asserted that the Supremacy Clause provides a "rule of construction" but does not "create a cause of action" unless Congress "permits the enforcement of its laws by private actors."  The Court then determined that Congress intentionally excluded private enforcement from the Medicaid Act, and therefore providers cannot seek injunctive relief under the Supremacy Clause.

    This conclusion is incorrect.  Congress did not "foreclose" or "exclude" private enforcement from the Medicaid Act, either in 1965 when Medicaid was enacted, or when 30(A) amended the Act.  In fact, Congress debated preventing providers and beneficiaries from seeking relief in federal court but never added such language to the Medicaid Act.  Nevertheless, the majority concluded that the Secretary of HHS is solely responsible for enforcing 30(A) pursuant to her authority under 42 U.S.C. §1396c to withhold Medicaid funds from non-compliant states.  The Secretary is reluctant to withhold funds because it could harm beneficiaries, but the majority did not engage this quandary.  Instead, the majority called 30(A) judicially unmanageable – even though lower federal courts have guided states under 30(A) for years – and held that HHS must directly engage the states without federal courts’ interference.

    The majority circled back to Medicaid's status as a spending program in Part IV of its opinion, which may resurrect a dormant theory of spending programs as being like contracts and unlike other federal laws.  The Court often analogizes federal conditional spending programs to contracts under the Pennhurst decision, but in some cases (e.g. Barnes v. Gorman), Justices have suggested that the "third party beneficiaries" of federal spending programs have no enforceable rights.  The majority opinion reiterated this view of conditional spending statutes, noting that "contracts between two governments" cannot be enforced by beneficiaries of those contracts.  Not even the historical vision of strict dual sovereignty in federalism would have claimed that the federal government and the states are co-equal sovereigns, yet this dicta seems to embrace a vision of federalism that offers much more power to the states.  The majority opened the courthouse doors to further eroding of conditional spending statutes in the context of the Medicaid Act and perhaps beyond.

  • January 28, 2015
    BookTalk
    Cases on Reproductive Rights and Justice
    By: 
    Melissa Murray and Kristin Luker

    by Melissa Murray, Professor of Law and Faculty Director of the Berkeley Center on Reproductive Rights and Justice (CRRJ), University of California, Berkeley

    I must admit that for much of my academic career, I never thought of myself as someone who “did” reproductive rights.  When asked at dinner parties, I volunteered that I taught criminal law and family law.  When pressed ― “what on earth do those subjects have to do with each other?” ― I would explain that I was interested in the regulation of sex, sexuality and family formation.  Criminal law and family law, I would explain, were principal sites in which this sort of regulation took place.

    It was not until my colleague, Kristin Luker, a well-known sociologist and scholar of the abortion rights movement, nudged me to view my work more expansively that I began to see it fitting comfortably within the rubric of reproductive rights and justice.  As she reminded me, limitations on access to contraception and abortion are, by their very nature, efforts to regulate sex and sexuality by curtailing women’s efforts to control reproduction.  The legal regulation of reproduction is merely part of a broader story of efforts to discipline and regulate sex.

    My interest in reproductive rights and justice piqued, I joined Berkeley Law’s newly-formed Center on Reproductive Rights and Justice (CRRJ) as an affiliated faculty member in 2012 and assumed the role of Faculty Director in 2015.  Before its official founding, CRRJ hosted a meeting with staff from Law Students for Reproductive Justice (LSRJ) where we discussed the state of the field, including the availability of law school courses on reproductive rights and justice.  As I learned, although there was huge demand from students for such classes, many interested professors were reluctant to teach reproductive rights and justice courses because there was no casebook.  Because of the lack of a casebook, those willing to teach the subject were forced to compile their own materials ― a burdensome task, even for the most enthusiastic teacher.

  • January 2, 2015

    by Jeremy Leaming

    Liberals lost an inspiring orator, personality and tactician in politics with the death of former New York Governor Mario Cuomo. Many of the flood of eulogies, statements and tales of the long-serving governor reference his commitment to liberalism, especially when Ronald Reagan was pushing the limited-government agenda of the Right.

    ACS was fortunate to have had Cuomo serve on its Board of Advisors and was saddened by news of his death.

    Writing for The New York Times, Adam Nagourney noted Cuomo’s unwavering commitment to liberalism, which would lead to the New York governor becoming an “eloquent spokesman for liberal politics.” Cuomo took on Reagan’s “shinning city on a hill,” using high-profile opportunities to remind voters of inequalities in the nation that have continued to fester to this day.

    President Obama issued a statement that described Cuomo as “a determined champion of progressive values, and unflinching voice for tolerance, inclusiveness, fairness, dignity, and opportunity.”

    Some more thoughtful pieces on Cuomo’s life and work:

    Observations from The Atlantic’s James Fallows, with links to some of the governor’s speeches

    A piece for The Guardian by Walter Shapiro

    Blake Zeff’s personal look for Salon

    Los Angeles Times’ reporters Elaine Woo and Matt Pearce write that Cuomo “became one of the Democratic Party’s most forceful voices on the need to address economic inequality.”