Kathrine Jack

  • February 3, 2011
    Guest Post

    By Kathrine Jack, an attorney in Greenfield, Indiana.


    While national attention has focused on Congress's unsuccessful attempt to repeal the health care reform law, GOP members in state legislatures are looking to "nullify" last year's historic law by reviving rarely used constitutional arguments to do so.

    Measures currently pending in about a dozen state legislatures attempt to nullify health care reform by declaring the federal legislation unconstitutional and unenforceable within the state's borders.

    In Indiana, one of the states with a nullification bill pending, Senate Bill 505 purports to addresses the applicability of federal law in Indiana and "the inapplicability of certain federal law in Indiana." S.B. 505 directs that "A statute of the United States found inconsistent with the Constitution of the United States ... is not law in Indiana." After quoting that Ninth and Tenth Amendments of the U.S. Constitution, the bill then makes findings that the federal Patient Protection and Affordable Care Act is unconstitutional and that therefore, the law "is void in Indiana." The bill also creates a private right of action. While countless bills languish in state legislatures every year, S.B. 505 appears to be gaining traction and already has six state senators listed as co-authors. In Indiana, following a historic democratic win for Obama in 2008, republicans gained strong majorities in the state house and senate in the 2010 elections. Many of the new members espouse tea party values, including asserting that health care reform is unconstitutional. Republican Governor Mitch Daniels, mentioned as a presidential candidate, has not weighed in.

    Bills like Indiana's S.B. 505 are clearly an outlet for Republicans in state capitols to have a voice on the constitutionality of health care reform. As illuminated by a recent ACS Issue Brief and others, health care reform is on solid constitutional ground, and federal courts are currently addressing the question. But these nullification bills, being considered in other states, including Idaho, Maine, Montana, Nebraska, Oregon, Texas and Wyoming, raise additional, even more fundamental constitutional questions by presuming that state legislature have the power to do so. The claim that a state legislature could render a federal law unenforceable within the state raises questions of federalism not debated since perhaps the Civil War.

    The Framers seemed to have an answer. By looking at Article VI, Section 2 of the Constitution, statehouse legislators will note that federal law is "the supreme Law of the Land[.]"

  • October 8, 2009
    Guest Post

    By Kathrine Jack, Staff Attorney, National Advocates for Pregnant Women

    On Friday, the United States Court of Appeals for the Eighth Circuit issued a long-awaited decision in Nelson v. Norris, a case asking whether it is a violation of the Eighth Amendment to restrain a pregnant inmate by handcuffing her legs to her hospital bed during labor and whether the corrections officer who shackled the defendant's legs was entitled to qualified immunity. In a six-to-five en banc decision, the Eighth Circuit held that this was a constitutional violation and that the guard was not entitled to qualified immunity.

    The decision is a major victory for the growing movement to end the inhumane practice of shackling incarcerated pregnant women. This victory came from a surprising source - the conservative Eighth Circuit - suggesting that perhaps the extremely compelling facts alleged in this case left at least six of these judges with no alternative. ACSblog reported on the case last spring and outlined some of the constitutional, international human rights and public health arguments against shackling pregnant inmates.

    Shawanna Nelson, an African-American woman, was incarcerated for the non-violent offenses of credit card fraud and "hot checks." When she went into labor, a corrections officer shackled Ms. Nelson's ankles to opposite sides of her hospital bed throughout the majority of active labor, allegedly causing serious injury, despite recognition that Ms. Nelson was not a flight risk. Ms. Nelson brought a § 1983 claim against the director of the Arkansas Department of Corrections and the corrections officer alleging violation of the Eighth Amendment's prohibition on cruel and unusual punishment. The defendants raised the qualified immunity defense, which the district court denied. A three-judge panel of the Eighth Circuit, however, reversed and granted summary judgment for the defendants. Ms. Nelson petitioned for en banc rehearing with the assistance of the ACLU National Prison Project. National Advocates for Pregnant Women, the National Economic and Social Rights Initiative and the Kester law firm filed an amicus brief on behalf of more than thirty health, reproductive justice and prisoner and human rights organizations, raising public health, constitutional and international human rights arguments, in support of the re-hearing.