ACSBlog

  • May 23, 2016
    Guest Post

    by Madeline Gomez and Julia Quinn. Ms. Gomez is the LSRJ Reproductive Justice Fellow at the National Latina Institute for Reproductive Health. Ms. Quinn is the LSRJ Reproductive Justice Fellow at the National Health Law Program.                

    “Women have their own equal dignity.”

    So said Justice Anthony Kennedy last year in Obergefell v. Hodges, the Supreme Court decision that codified marriage equality. This pronouncement was part of a broad majority ruling that opined on personal decision-making in moving, sometimes even flowery prose. Yet this week, the Court declined to take the opportunity to affirm that women’s dignity includes the right to access contraceptive coverage regardless of their employer’s religious beliefs. Instead, in their Zubik v. Burwell per curiam opinion, the justices sent the case back to the lower courts for further review. Some have speculated that Justice Kennedy’s reluctance to side with employees motivated this procedural move. It was disappointing to those hoping the Obergefell decision signaled an understanding on the Justice’s part of the importance of self-determination to equality, including for women. But all hope is not yet lost. In the abortion rights case Whole Woman’s Health v. Hellerstedt, the Court’s “swing” voter has a second chance to prove that women’s dignity has power beyond rhetorical flourish.

    Kennedy’s majority opinion in Obergefell relied on what Harvard Law professor Laurence Tribe called “a tightly wound . . . double helix” of two principles rooted in the Fourteenth Amendment: Equal Protection and Due Process. Relying on Kennedy’s own words, Professor Tribe dubbed the doctrine “equal dignity.” Kenji Yoshino of NYU School of Law called it an “antisubordination liberty” because, he argued, the analysis looks to the impact that denying the liberty in question has on the relevant subordinated group. Thus, the Constitution demands the recognition and extension of the marriage right to same-sex couples not only for equality reasons, but also because doing so redresses some of the discrimination experienced by lesbian women and gay men.

    Obergefell’s reliance upon dignity as a fundamental constitutional principle related to questions of intimacy and equality was not novel. Nearly 25 years ago it was at the heart of Planned Parenthood v. Casey, a decision authored in part by Justice Kennedy. There, using language Obergefell would later echo, the Court declared personal dignity and autonomy “central” to constitutional conceptions of liberty ‒ including reproductive rights.

  • May 23, 2016
    BookTalk
    Hurrah for Liberals
    How progressives defeated conservatives to create democracy, human rights, and safe modern life
    By: 
    James A. Haught

    by James A. Haught, editor emeritus, The Charleston Gazette-Mail. This essay is drawn from his latest book, Hurrah for Liberals.

    In the chaotic presidential campaign, the remarkable popularity of Democratic Socialist Bernie Sanders spotlights a large, not-always-recognized vein of liberal political sympathy in America. Suddenly, the L-word is popular again ― not an embarrassment to be avoided. That’s great, I think, because progressives have been the driving force behind most social improvements in western civilization.

    Look at the historical record: In the three centuries since the Enlightenment, democracy, human rights, personal liberties and family wellbeing have blossomed. Life gradually became more decent and humane. Virtually all the advances were won by reform-minded liberals who defeated conservatives defending former hierarchies, privileges and inequalities.

    Conservatives tried to retain slavery, but they lost.

    They tried to block voting by women, but lost.

    They tried to prevent couples from using birth control, but lost.

    They tried to obstruct Social Security pensions for oldsters and the disabled, but lost.

    They tried to outlaw labor unions, but lost.

    They supported government-led prayer in school, but lost.

    They tried to continue throwing gays in prison, but lost.

    They tried to defeat Medicare and Medicaid, but lost.

    They fought against racial equality and tried to outlaw interracial marriage, but lost.

    They tried to censor sexy magazines, books and movies, but lost.

    They tried to halt same-sex marriage, but lost.

  • May 23, 2016

    by Jim Thompson

    The Oklahoma Department of Corrections breached protocol multiple times during recent attempts to execute inmates according to a report released Thursday by a grand jury tasked with investigating the department, says Kim Bellware at Huffington Post.

    At MSNBC, Zachary Roth praises Oregon’s automatic voter registration law, which “has particularly helped groups that have traditionally been alienated from the process, including the young and racial minorities.”

    The Supreme Court on Monday voted unanimously to uphold a lower court decision that says Virginia’s congressional districting map unconstitutionally packs black voters into certain districts, reports the Associated Press

  • May 20, 2016
    Guest Post

    by Herman N. (Rusty) Johnson, Jr., Associate Professor of Law, Samford University Cumberland School of Law

    May 18, 2016, is a momentous day for U.S. workers. The U.S. Department of Labor released new overtime rules that restore the New Deal-era promise of the Fair Labor Standards Act (FLSA) by increasing the salary level required to exempt certain employees from overtime pay. The new rules will be a boon for working and middle class Americans, as it will increase their pay, provide them more time to spend with their families, lead to improvements in health and productivity, and create jobs.

    The FLSA, originally enacted in 1938, assures overtime premium pay of time-and-a-half for employees who work more than 40 hours per week. However, the FLSA exempts some types of employees from the overtime protection, in particular white collar workers classified as executive, administrative, professional, outside sales, and computer employees. Congress delegated authority to the Secretary of Labor to define the exemptions, and generally, employers must satisfy three requirements to properly classify employees as exempt pursuant to a white collar category: 1) the employees must be paid a fixed salary, 2) the employees must be paid at least a specific salary amount, and 3) the employees’ primary duties must involve one of the enumerated exemptions.

    Currently, the DOL’s regulations set the salary level at $455 per week, which is $23,660 on an annual basis. The rigors of inflation and inattention have eroded the FLSA’s overtime protection at this level. The designated amount is less than the poverty line for a family of four and only 1.6 times the federal minimum wage of $7.25. Furthermore, at present, a mere seven percent of salaried workers receive overtime protection, whereas 62 percent did so in 1975.

    The new DOL regulations increase the salary level required to trigger the white collar exemptions. The revised rule, which takes effect December 1 of this year, sets the salary level at $913 per week, or $47,476 annually, which equates to the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census region (currently the South). The new rule also creates an updating mechanism which benchmarks the salary level every three years to the same metric.

  • May 20, 2016

    by Jim Thompson

    Oklahoma lawmakers passed a bill that, if signed into law, will make it a felony to perform an abortion, reports Merrit Kennedy at NPR.

    At The Atlantic, Vann R. Newkirk II examines segregation in America’s healthcare system, noting, “Racial differences in almost every health outcome ‒ from infant mortality to life expectancy ‒ are obvious and pronounced, especially between white people and black people.”

    Patricia J. Williams at The Nation says many of the proposed solutions to combatting the Zika virus highlight the dangers of letting religion affect public health policy.