Guest Post

  • January 30, 2015
    Guest Post

    by Kelli Garcia, Senior Counsel, National Women's Law Center

    Between 2011 and 2013, politicians in 30 states enacted 205 abortion restrictions, ranging from outright and unconstitutional abortion bans to laws intended to make it impossible for providers to offer abortion. Last year alone, fifteen states adopted 26 new restrictions that limit or impede access to abortion, making it harder and sometimes impossible for women to exercise their constitutionally protected right to abortion. This wave of anti-abortion activity has dramatically changed the country’s landscape for women seeking an abortion. According to the Guttmacher Institute, in 2013, more than half the states had at least four abortion restrictions in effect

    These multiple restrictions compound and, for many women, make it impossible to obtain an abortion. In Texas, for example, a woman seeking a medication abortion has to make four separate trips to the provider because of the restrictive laws that exist in that state. She is forced to undergo and view an ultrasound, listen to a description of the fetus' development, wait 24 hours, and then has to make two trips for medication abortion because Texas forces providers to use an outdated protocol rather than following current evidence-based medical practice. And this is if she can actually reach a provider - one out of six women in Texas will have to travel 150 miles or more to reach an abortion provider.

    These laws impose unnecessary monetary costs. These costs are particularly devastating to low-income and poor women who already face significant barriers accessing care. The cost of the abortion itself can be prohibitive, especially when politicians force women to pay out of pocket by prohibiting insurance coverage of abortion. Then, women must arrange for and receive time off work, most likely without pay. They might have to pay for childcare, find a place to stay or make multiple roundtrips to distant clinics, and/or find reliable transportation.  As one provider aptly noted, “[T]he vast majority of women can’t add those travel costs to the cost of an abortion or they can’t take off work.” These restrictions chip away at women’s right to abortion by creating so many barriers that abortion becomes unobtainable.

  • January 29, 2015
    Guest Post

    by Eric Berger, Associate Professor of Law, University of Nebraska College of Law

    The U.S. Supreme Court last week granted certiorari in Glossip v. Gross, in which plaintiffs challenge the constitutionality of Oklahoma’s lethal injection procedure.  Glossip raises important questions about how the Eighth Amendment standard announced by the Court in 2008 in Baze v. Rees applies to experimental drug combinations.  However, the questions presented in Glossip do not directly address the crucial, related question of whether states must disclose their lethal injection procedures to inmate plaintiffs.  To this extent, the Court is putting the cart before the horse.

    Indeed, many death row inmates lack important information about the procedures with which the state plans to execute them.  The problem appears to be worsening as states increasingly conceal more details of their execution procedures.  Courts, for their part, usually reject inmates’ requests to learn this information. 

    In a recent law review article, I argue that these state practices and judicial responses are wrong.  To be sure, some execution procedures, upon closer examination, may be safe and constitutional, but some certainly are not, and courts have no way of distinguishing the safe from the dangerous without inquiring into the details of the procedure.  To this extent, courts have repeatedly blessed execution procedures about which they know virtually nothing.

  • January 26, 2015
    Guest Post

    by Adam Winkler, Professor of Law at the UCLA School of Law.

    During oral argument in the Fair Housing Act case this past week, Justice Antonin Scalia explained how another high-profile case coming later this term—King v. Burwell—ought to be decided. The King case involves the latest challenge to the Affordable Care Act. The challengers argue that the ACA does not authorize tax credits for people purchasing insurance on exchanges set up by the federal government rather than the states. They rely on a provision in the law that says such credits are available for insurance bought “through an Exchange established by the State.” Read in isolation, that provision would seem to suggest that the credits are available only on the 14 exchanges run by the states, not in the 36 states with exchanges run by the federal government.

    In the hearing in the Fair Housing Act case, however, Justice Scalia—whose vote is almost certainly necessary for the ACA challengers to win their case—elucidated why the ACA challengers should lose. The Court’s obligation in interpreting a statute, Scalia said, is to “look at the entire law,” not just “each little piece” in isolation. “We have to make sense of the law as a whole,” Scalia insisted. Whether or not something is allowed by a statute can only be determined “when all parts are read together.”

    Anyone who reads the “whole law” in the ACA case would easily conclude that credits are available on the federally run exchanges. Start with the basic objectives of the law. According to the authors of the law, “The Affordable Care Act was designed to make health-care coverage affordable for all Americans, regardless of the state they live in. Providing financial help to low- and moderate-income Americans was the measure’s key method of making insurance premiums affordable.” That basic goal would be completely undermined if federally run exchanges couldn't offer the tax credits.

  • January 23, 2015
    Guest Post

    by Rena Steinzor, Professor of Law, University of Maryland Carey School of Law, and President of the Center for Progressive Reform. Steinzor is also author of the new book, Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction from Cambridge University Press.

    Candice Anderson was 21 when she lost control of her Chevrolet Cobalt in a moving stall caused by a defective ignition switch, drove into a tree, and killed her fiancé. Two years later, in 2006, Texas police charged her with reckless homicide. Her parents liquidated their retirement account to pay for her defense. She pled guilty, spent five years on probation, paid $10,000 in fines, and had to live with the shame of the crime on top of the grief of the accident. In 2014, General Motors (GM) sent Anderson a letter explaining that her accident was the company’s fault. A judge in Texas cleared her criminal record a few weeks ago.

    The Department of Justice has opened a criminal investigation into GM’s conduct and the next attorney general will decide whether and how to charge the company. President Obama’s nominee, Loretta Lynch, will need to make a break with the misguided policies of her predecessor, Eric Holder, when the GM case hits her desk.

    Under Holder, the Justice Department has handled white collar criminal cases involving the largest companies in the world with “deferred prosecution agreements,” a form of settlement that does not require the defendant to acknowledge any criminal culpability, no matter how heinous the crime. Instead, these special deals require the defendant to pay large sums of money in civil penalties. Given their ample financial resources, such sums end up being an affordable cost of doing business. 

    Deferred prosecution agreements undermine the straightforward application of white collar criminal laws that punish everything from racketeering and fraud to deadly violations of health, safety, and environmental laws. The Obama Justice Department has entered roughly twice the number of deferred prosecution agreements as the George W. Bush administration and has been rightly criticized for embracing the corrupt notion that some firms may be “too big to jail.” 

  • January 23, 2015
    Guest Post

    by Dr. Margaret Nygren Executive Director and CEO of the American Association on Intellectual and Developmental Disabilities, the oldest professional society concerned with intellectual disability.

    Objectively, how many different doctors must concur on a diagnosis before it is considered definitive? For that medical diagnosis to be respected by the law, how many courts need to agree? In the case of Warren Hill, a Georgia man with lifelong, documented intellectual disability, every doctor who has evaluated him (seven doctors, including those who testified for the state) and two judges (in 2002 and 2012) have found him to be a person with intellectual disability. Yet, despite the clarity of his diagnosis, and despite the constitutional protection for persons with intellectual disability from execution, Mr. Hill faces lethal injection in just days, on Tuesday, January 27, unless the U.S. Supreme Court intervenes.

    Warren Hill grew up in extreme poverty in rural Georgia, and, like too many adults in our criminal justice system today, did not receive a formal diagnosis and helpful therapies as a child.  In fact, at the schools Mr. Hill attended in the 1960s and early 1970s, special education was not available, and several of his former teachers have submitted sworn affidavits that had special education services been available, they would have recommended them for Mr. Hill, who clearly showed signs of the deficits in functioning, which mark intellectual disability in his childhood. 

    The organization I lead, the American Association on Intellectual and Developmental Disabilities, AAIDD, was the first organization the U.S. to help produce a working clinical definition of intellectual disability, formerly called “mental retardation,” and among the first to promote the provision of special education services in public schools. The U.S. Supreme Court used AAIDD’s clinical definition when it first ruled to protect prisoners with intellectual disability from capital punishment in Atkins v. Virginia in 2002.