What Happens when Service-Members, Past or Present, Breach their Sacred Oath?

Military veterans comprise seven percent  of the American adult population. Yet approximately 20% of those criminally charged in connection with the January 6 insurrection at the U.S. Capitol once served in uniform:  to date, more than thirty veterans have been charged with crimes related to the violence that day. Furthermore, there are troubling reports – including allegations from at least one member of Congress – that a number of those involved in the violent uprising were currently-serving active duty or reserve personnel.

Given that the very first step in becoming a member of the armed forces is swearing an oath to support and defend the Constitution, their outsized participation in a violent uprising against the federal government in an effort to disrupt the peaceful transfer of executive power is alarming. Even the new Secretary of Defense, retired Army General Lloyd Austin, has expressed dismay at the disproportionately high number of veterans involved in the January attack. While he was careful to note that he didn’t “expect to see significant numbers inside our ranks,” the small number of extremists in the current ranks is “probably a bit larger than that we would have believed."

Under Austin’s civilian leadership, the uniformed military has committed to better inculcate all service-members (and civilian employees of the Department of Defense) with fidelity to the law based on a foundation of understanding our constitutional values and democratic norms. But let’s not pretend that those who participated in or supported the insurrection were completely ignorant of these norms. They were not, which makes their participation all the more aggravated. Accordingly, it is important to ask what role the classic method of punishing misconduct in the military – criminal prosecution by court-martial – could or should play in the aftermath of January 6.  Quite little, at least at this juncture, but let’s have fun with the question first.

While all of the charges to date have been alleged in federal court, members of the armed forces are also subject to the distinct military justice system. This system is based on the authority vested by the Constitution in Congress in Article I, Sect. 8, Clause 14 “to make rules for the government and regulation of the land and naval forces.” Designed primarily to ensure good order and discipline within the uniformed ranks, its breadth of crimes is sweeping, and its procedural safeguards, while robust, differ in several respects from civilian criminal procedure. For example, military members enjoy no Fifth Amendment right to indictment by grand jury, per that amendment’s express terms; they also possess, “by implication,” no Sixth Amendment right to an impartial jury of peers – meaning military ‘juries’ are composed of individuals who always outrank the accused. It also means that the military remains the only criminal justice system in the United States that does not require a unanimous verdict.

But what might surprise most people is that apart from these differences, trial by court-martial in large measure reflects the same procedures that attempt to ensure fairness in the federal civilian criminal justice system. Indeed, while the Supreme Court once called military justice “a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks,” by 2018 that same Court characterized courts-martial as judicial in nature, part of an integrated system “that closely resembles civilian structures of justice.” Ortiz v. United States, 138 S. Ct. 2165, 2167 (2018).

The military’s penal code, the Uniform Code of Military Justice (UCMJ), includes common law crimes such as murder, rape, and larceny. Given that there is no requirement that the crime involve the military beyond the fact that the accused is a member of the armed forces subject to military law, courts-martial jurisdiction often “overlaps substantially with that of state and federal courts” Ortiz v. United States, 138 S. Ct. 2165, 2167 (2018). However, the UCMJ also, quite reasonably, provides numerous military-unique crimes, such as conduct that is service discrediting or prejudicial to good order and discipline; insubordination; desertion; contemptuous words; and disobedience. As a result of these crimes that compromise good order and discipline, it is an undeniable reality that the civil liberties of those in the military are not co-extensive with civilians; the First Amendment’s freedom of speech protections, for example, apply far differently, and for the most part appropriately so, to those in the military than to those not in uniform.

Given the unique over-arching purpose of the military’s specialized criminal justice system, service-members cease to be subject to military law once they have cut their ties to the institution. Indeed, the Supreme Court has carefully policed the military’s jurisdictional reach over former members of the armed forces. Importantly, with respect to the veterans involved in the January 6 insurrection, the military lacks jurisdiction over “civilian ex-soldiers who ha[ve] severed all relationship with the military and its institutions.” United States ex rel. Toth v. Quarles, 350 U. S. 11, 14 (1955). This is true even if the misconduct occurred while on active duty but was only discovered after the service-member was discharged. Simply put:  unless one of the military veterans who participated in the January 6 violent uprising falls into one of the specified retiree categories established by Congress (active-duty service members are typically eligible for retirement, with pay and benefits, after twenty-years of active service), the military justice system has no jurisdiction over the misconduct, even if it would qualify as a crime if committed by a service-member on active duty.

Subjecting U.S. citizens to this specialized military system of justice may be necessary, but that necessity is limited by the relationship of the individual to the institution. The Supreme Court has linked such classification to whether "certain overriding demands of discipline" require court-martial jurisdiction over a particular class of individuals. This is why the jurisdiction of military courts turn on both the nature of the offense and the status of the person accused of committing it at the time of the offense. Personal jurisdiction is directly tied to whether the person is considered to be part of the “land and naval forces” within the scope of Congress’ Article I, Sect. I, Cl. 14 rule-making authority over the military.

Of course, active-duty service members are always subject to the UCMJ. This status-based jurisdiction aligns with congressional Article I rule-making authority. Congress, in 10 U.S.C. § 802 (Article 2, UCMJ) ,the federal statute outlining the military justice system’s jurisdictional reach, delineates several other categories of personnel also subject to the Code in addition to those on active duty (thus ostensibly making the others also part of the “land and naval forces.”) Just what is required to justify subjecting these other categories of personnel – those not actively serving – to military jurisdiction is one of the hot issues de jure in military law, as discussed below.

Among the other categories of individuals subject to military jurisdiction are Reservists and national guard personnel. But by statute this jurisdiction applies only when they are serving on active duty orders or in a special training status. This limitation is important; if current Reservists or members of the national guard were taking the day off from their day job to storm Capitol Hill (hence on inactive status), vice skipping military duty, they simply do not fall within the scope of military criminal jurisdiction for their January 6th activities.

In contrast to the very limited military jurisdiction over current reserves and guardsmen/women, “regular” retirees (from active duty) are, at least by the plain language of the UCMJ, subject to military criminal jurisdiction for post-retirement misconduct. This retiree category does not include retired reservists (vice retired regulars) like the former Air Force pilot who allegedly stormed the halls of Congress on January 6th (oddly, unless the misconduct occurs while such reservist retiree is being treated in a military hospital).  This seems like a perplexing dichotomy. Why has Congress extended  court-martial jurisdiction over America’s two-million plus active duty retirees when even current reservists and those in the national guard are not subject to analogous jurisdiction unless actually in an active duty capacity?

This dichotomy was central to the recent D.C. federal court decision casting doubt on the constitutionality of the current jurisdictional reach of this specialized system of military justice. Larrabee v. Braithwaite, Civil Case No. 19-654 (RJL) (D.D.C. Nov. 20, 2020), is a collateral challenge to the in personam jurisdiction of a court-martial conviction of a member of the Fleet Reserves, a particular category of military retirees found in Article 2 of the UCMJ. United States District Judge Richard J. Leon found that since “Congress has not shown on the current record why the exercise of such jurisdiction over all military retirees is necessary to good order and discipline,” the broad swath of the UCMJs military retiree jurisdiction provision exceeded Congress’ Article I rule-making authority – thus resulting in a reversal of his court-martial conviction based on post-retirement misconduct.

While Larrabee is wending its way up on appeal in the D.C. Circuit, the military’s highest appellate court, the Court of Appeals for the Armed Forces (CAAF), heard oral argument last week in United States v. Begani, a case involving another Fleet Reservist retiree challenging the constitutionality of his court-martial conviction for crimes committed after he retired from active duty. Not only did Begani’s counsel argue that treating retirees differently from current reservists and others violates equal protection, CAAF granted a supplemental issue:  whether under Article I and the Fifth Amendment, “any retiree may constitutionally be subjected to a court-martial for offenses committed while retired (and, if so, for which offenses)”—seemingly the very issue raised by Judge Leon in Larrabee.

It is unclear how CAAF will rule in Begani. It may be that Larrabee has in effect opened the door for CAAF to strike down the constitutionality of military retiree jurisdiction, or at a minimum restrict that jurisdiction to offenses committed prior to retirement. Regardless, these cases present a relatively rare and important opportunity for judicial clarification of the permissible extent of Congress’ power to subject citizens (and in some cases non-citizens) to the military justice system. What is the test for determining who falls within the scope of this authority? And these cases may have a broader impact, to include possible scrutiny of the central premise itself – is specialized military jurisdiction still necessary for maintaining good order and discipline for the land and naval forces?  Or, perhaps, is that question a priori asked and answered by Article I’s grant of rule-making authority itself, despite the vastly different military of today, compared to the tiny, and loathed, “standing Army” extant at the Constitution’s writing?

Going back to the January 6 insurrection – while a disproportionately high number of military veterans were involved, it is doubtful that more than a handful are actually subject to military jurisdiction. Even for those who are, the military should continue to defer to the Department of Justice to take the lead to prosecute them for the same crimes as their civilian criminal colleagues (as explained here). For any current reservist or guardsman/women involved in the insurrection, their fitness for continued duty should be evaluated, with civilian convictions providing a basis for discharge. Finally, for any active-duty member of the U.S. military who participated in the January 6th insurrection, their crimes against our civilian government should be prosecuted by that civilian government, thus reinforcing its legitimacy, and any military-unique crimes, such as conduct unbecoming an officer and gentlewoman, can be subsequently tried by court-martial.

Even if the military foregoes any such prosecution, these individuals will almost certainly be subject to administrative action to separate them from the active rolls based on their civilian convictions. Accountability for their criminal misconduct may be properly reserved for federal civilian prosecutors, but their blatant breach of allegiance to the Constitution they swore to defend is reason enough for the military institution to sever their connection to national service -- and to double-down on efforts to educate the ranks on the meaning of that special oath that binds together those in uniform.

Women Also Know Law

Meera Deo’s path making book Unequal Profession: Race and Gender in Legal Academia turned the legal academy’s apparent interest in racial and gender diversity back on the legal academy. Unequal Profession, published by the Stanford University Press in 2019, shared Deo’s empirical and qualitative analysis of the legal profession, based in significant part on interviews that Deo conducted with law professors.

When Deo began her study in the 2000s, the data from the Association of American Law Schools suggested that barely 41% of law school faculties were women. But that number included non-tenure track faculty, and as Renee Nicole Allen, Alicia Jackson, and DeShun Harris, among other scholars have noted, women are overrepresented among non-tenure track faculty. In other words, the percentage of law school faculty who are women would be lower than 41% if the data set included only tenured or tenure-track law school faculty.

This disparity is evident in many different ways and along many different measures. The most cited legal scholars are overwhelmingly white men. And too often, syllabi, conferences, and legal news stories feature white men as experts. Some of these disparities are due to the lingering effects of exclusion—until relatively recently, law schools did not hire many, or even any, women as faculty members, and when they did, women faced barriers in securing tenure. Other disparities are caused by phenomena that persist to this day.

As Deo persuasively demonstrates in her book, women are sometimes asked to take on more administrative caretaking or institutional service work at schools. Students may feel able to approach women professors for a wider range of support tasks than they would of male professors. And law schools, in order to ensure that there is diversity on various committees, sometimes end up asking women faculty to do more service work. The same goes for teaching: in order to ensure that students, particularly first-year students, learn from a diverse set of faculty, the few tenure-track women faculty members may be asked to teach large classes, including first-year classes, rather than smaller more niche electives. All of that means they may have less time to conduct and promote their own research. If and when they do go out and promote their own work and research, they may be perceived more negatively than men who do the same. We know that these burdens and disadvantages are even more severe for women of color and have been compounded by the pandemic.

It’s no surprise given the state of legal academia that the same is true outside of our academic institutions, as the public may perceive that legal scholars are overwhelmingly male. Women and nonbinary legal scholars are underrepresented in news and media, where too often journalists don’t seek out women’s expertise and instead rely on male experts. Women experts even tend to have less Twitter followers and reach than men. This means that not only are law students and our colleagues not seeing and hearing enough from women legal experts, but neither is the public.

This underrepresentation in law schools and media doesn’t mean that women are not doing great work in the legal academy. Far from it. While we recognize that there’s still a lot of dismantling of gender bias to do in the academy, we formed Women Also Know Law to provide one easy and concrete solution. In creating the Women Also Know Law database and social media platform, we joined a growing group of other Women Also Know initiatives across the academy, including the OG Women Also Know Stuff in political science, Women Also Know History, and People of Color Also Know Stuff. These, and other public facing efforts like Strict Scrutiny and Women in the Law, are changing the look and sound of legal expertise.

Women Also Know Law offers a database and a social media feed to highlight the work of women and nonbinary legal academics. The database offers a searchable resource for scholars and journalists looking to find an expert, an author, a panelist, or someone to include on a syllabus. And every day the Twitter feed highlights the articles that are being written by women and nonbinary authors, as well as the articles that quote or feature them and the accolades they receive. By amplifying the work of women and nonbinary academics, we can try to combat some of the disparities and disadvantages they face – whether it’s additional teaching, additional requests from students, or additional service work.

Equally important, the database and social media feed eliminate a persistent excuse that conference organizers or journalists sometimes use when they present a less than diverse array of experts—namely, that they didn’t know any women or nonbinary experts or weren’t sure where to find them. We’ve done that work for them; all they have to do is use the tools that we’ve made available.

We’re fortunate to have a wonderful group of students and advisory board members at the University of Michigan Law School who help produce our social media feed. You can help Women Also Know Law too! Everyone can message us on Twitter with recent publications and accomplishments for us to highlight and promote. If you’re a conference organizer, journalist, podcaster, or professor, use the database! There are hundreds of legal experts in every field of law just a keyword search away for your next article, panel, or syllabus. And especially important: if you’re a woman or nonbinary legal scholar, join the Women Also Know Law database with hundreds of other legal scholars so we can amplify your expertise.

Authors: Leah Litman and Emily Prifogle are the cofounders of Women Also Know Law. They are both assistant professors of law at the University of Michigan Law School.

“No One Succeeds Alone”: The Critical Importance of Role Models in Empowering Women of Color to Succeed in the Legal Field

Women make up 50.8 percent of the United States population.  Women of color make up 20.2 percent of the population of women.  Despite these statistics, the prevalence of women—and women of color specifically—within the legal field is disparate.

  • Women account for only 35 percent of the legal practitioners.
  • Women of color make up only 8.57 percent of all attorneys.
  • Women fill only 1 percent of all (state and Federal) judgeships.
  • Women fill only 22 percent of state judgeships.
  • Women of color fill only 8 percent of state court judgeships.

These statistics, and the disparity they represent, indicate a colossal failure by the legal community to uplift, support, and sponsor women of color.  Tsedale M. Melaku discussed this failing in her 2019 article Why Women and People of Color in Law Still Hear “You Don’t Look Like a Lawyer.”  She explained that there is an unwritten (but undoubtedly experienced) “inclusion tax” forcing people of color to expend “time, money, and mental and emotional energy required to gain entry to and acceptance from traditionally white and male institutional spaces.”

My personal experience, from childhood to Justice, serves as an example of why representative mentoring structures are imperative for women of color within the legal community.

Growing up on the Leech Lake reservation, my access to influential women was extremely limited. I was the only daughter surrounded by four brothers, two older and two younger.  My father was a union man, and because of the remoteness of where we lived, work could be scarce.  My mother, a Fulbright scholar, worked in Indian Education at my high school.  She was an incredibly strong woman who led our family through many challenging and difficult times, including a catastrophic house fire, two of my brothers being hit by a drunk driver (one of whom lived despite the odds), and my father losing both legs to diabetes followed by his untimely death, all while managing a family of 7 on a low income.

In high school, I looked into becoming a dentist because I thought our dentist was a very nice man.  Thankfully, I realized that was a poor choice because I didn’t enjoy science.  How law entered my mind, I have no idea.  It certainly was not from television, because we had two channels, and Hee Haw was not much of an inspiration.  My mother had attended St. Catherine University and, as her only daughter, it seemed like a logical choice for me.  At St. Catherine’s, I was exposed to diverse, strong women—all with impressive career goals.  The majority of the professors were women, and they encouraged my desire to become a lawyer. Though I still had not been exposed to anyone like me (a Native woman) who was a lawyer, I knew that other women from St. Catherine’s had become lawyers and judges, and this reinforced my goal to become an attorney.

After St. Catherine’s, I attended Hamline Law School, where I met one Native student.  But she was in her 3-L year and graduated shortly afterward.  I do not recall meeting any other women, let alone women of color, that I felt a connection with while in law school. Although I did find great friends, I felt isolated.

After law school, I joined the Hennepin County Attorney’s Office.  There I was surrounded by strong women who were very influential and supportive.  These women, and my other colleagues, all seemed to know where they were going.  I, however, felt adrift.  It was not until I had the good fortune of meeting District Court Judge Robert Blaeser that my career plans began to solidify.  Judge Blaeser provided me with mentorship from a person who was from, and appreciated, my Native heritage. He could see the passion in me, and helped bridle, mold, and direct my drive.  He accepted me with all of my limitations.  He stuck with me through my eye-rolling phase, my less-than-stellar pregnancy wardrobes, and when I nearly burned down the family justice center by neglecting my waffles that were stuck in a malfunctioning toaster.

My mentorship with Judge Blaeser morphed into friendship, and has been pivotal to my success as an attorney, Judge, and now Justice.  He is one of the people who encouraged me to apply to be a Justice on the Minnesota Supreme Court so I could become an example for others who, like myself, didn’t have friends in influential positions.

I would love to say my transition to the supreme court was flawless, but it was not.  I felt like a fish out of water.

I had read My Beloved World by U.S. Supreme Court Justice Sonia Sotomayor.  She wrote, “Many of the gaps in my knowledge and understanding were simply limits of class and cultural background, not lack of aptitude or application as I feared.”  Her words echoed my thoughts, and shortly after I was appointed I had the good fortune to meet her.  It was exactly what I needed at the time, because she instantly infused me with confidence that I was not only worthy, but that I was capable. Her affirmation reinforced my individual value to the court and reminded me how important and essential it is to receive validation from others with whom you feel a unique bond and connection.

I cannot highlight enough the importance of having a mentor who can see, understand, and feel your history, struggle, resilience, and drive.  The legal community could vastly improve the experience of women of color by developing a culturally-competent mentoring structure.  One of the best ways to do this is to cultivate a group of well-established attorneys of color who can provide mentoring, friendship, and sound career advice to the young women of color entering the legal field.

When, at long last, the bar is representative of our communities of color, our communities will be better off.  Our lawyering and judging will become more grounded in the reality of experiences that have long been ignored by the majority.  I hope that I have played, and will continue to play, some small role in making this happen.

The Honorable Anne K. McKeig joined the Minnesota Supreme Court as an Associate Justice in September 2016.  A descendant of the White Earth Nation, Justice McKeig is the first Native American female to sit on any state supreme court, and her appointment created a women’s majority on the Minnesota Supreme Court.

Disability Justice is Gender Justice: Acknowledging Disabled Women This Women’s History Month

Marissa Ditkowsky, a white woman with dark, long hair, a black coat, and a walker, stands in front of a large crowd and a stage at the Women's March in January 2017. Marissa would like to recognize activist Mia Ives-Rublee for ensuring the Women's March was an accessible and inclusive experience for her and other disabled protestors.
Marissa Ditkowsky, a white woman with dark, long hair, a black coat, and a walker, stands in front of a large crowd and a stage at the Women's March in January 2017. Marissa would like to recognize activist Mia Ives-Rublee for ensuring the Women's March was an accessible and inclusive experience for her and other disabled protestors.

Content Warning: This article contains discussion of sexual assault, trauma, gender-based violence, and loss of reproductive autonomy.

Roe v. Wade is a landmark case that is largely associated with gender justice and reproductive justice. However, we do not discuss how Roe v. Wade plaintiff Norma McCorvey was institutionalized, was a ward of the state, experienced extreme trauma throughout her life, and used substances. We fail to address how these issues of autonomy, due process, and control over our bodies that permeate reproductive justice case law and disproportionately affect disabled women. We ignore the ways in which reproductive justice intersects with disability justice. After all, then-sitting Supreme Court Justice Oliver Wendell Holmes, Jr. thought it apt to write in Buck v. Bell, “It is better for all the world, if . . . society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough,” in upholding the constitutionality of a Virginia statute authorizing compulsory sterilization of individuals with intellectual disabilities for eugenic purposes. Buck v. Bell has never been formally overturned. This ableist history is one that we must also grapple with during Women’s History Month. Often, disabled women, particularly disabled women who are black, indigenous, and people of color (BIPOC), are overlooked in these conversations. The intersectionality of disability justice and gender justice must be acknowledged for us to defeat systemic oppression and undermine patriarchal norms.

As a disabled person, much of my work has focused on the intersection of disability justice and other identities and aspects of the law. I have produced scholarship on the constitutional concerns raised when a disabled adult under guardianship is not guaranteed the right to make a decision about whether to reproduce. My current project at Tzedek DC—a non-profit dedicated to safeguarding the legal rights of DC residents with low incomes dealing with often unjust, abusive, and illegal debt collection practices, as well as other consumer protection problems—focuses on the rights of disabled consumers and how these issues disproportionately affect disabled individuals. Disability is not an issue that we can silo. Disability justice is racial justice; it is LGBTQ+ justice; it is environmental justice; it is employment justice; it is educational justice; it is criminal legal reform. Disability is engrained in every aspect of our lives—it is part of our identity.

Disabled women are still regularly deprived of autonomy and due process. With the release of the New York Times Presents: Framing Britney Spears and the popularization of the #FreeBritney movement, there have been a number of discussions about 1) the problems associated with overly restrictive guardianships and conservatorships, 2) how they restrict the rights of disabled individuals, and 3) how gender played into the way Britney Spears was treated throughout her career and by the legal system. In the documentary, Tess Barker, one of the co-hosts of the podcasts “Britney’s Gram,” poignantly notes, “I have always viewed the situation as something that I don’t think would have ever happened to a man in America.” Restrictive and rights-stripping structures like guardianships and conservatorships are not meant for individuals who are able to make their own decisions. It is concerning that disabled women continue to be denied control over their own decisions—whether those decisions are about whether to have children, what to do with our money, what to do with our careers, with whom we associate, how to vote, or anything else—particularly when the judicial branch sanctions these injustices. Guardianships and conservatorships are also extremely difficult to remove once imposed. The legal system sanctions this exploitation and abuse, often times even when less restrictive alternatives would work for the disabled person, such as powers of attorney, which can be revoked; supported decision-making; or limited guardianship, if necessary, in only the areas in which the individual lacks capacity.

This issue of autonomy bleeds into reproductive justice, sexual freedom, and parental rights for disabled women. (It should be noted that reproductive justice is not simply an issue that affects women, although it disproportionately affects women. Reproductive justice is vital for transgender, non-binary, and gender non-conforming folks who can reproduce as well.) Not all disabled people are permitted to make decisions about their own reproductive rights. Disabled people may be subject to forced sterilization or abortion, or even forced to reproduce. Guardianship may play a role in whether someone can make these decisions—rules are not consistent, although there are typically due process requirements involved in when a guardian can make such decisions. In one case, six-year-old Ashley X’s parents elected to perform estrogen therapy, bone plate fusion, a hysterectomy, and breast bud removal, claiming she would never develop past the motor and cognitive skills of a three-month-old. The State of Washington eventually found that the procedure was illegal, but these eugenic attitudes remain pervasive.

Forced sterilization also occurs in the criminal context. For example, in 2005, Carrie Ashe, who killed her child after experiencing post-partum depression, was forced to agree to undergo sterilization as a part of her plea deal. One might argue that Ashe chose to undergo sterilization, but the choice was sterilization or jail. When these are the options, of course, disabled individuals would feel pressured into sterilization. There is an extreme power imbalance; the government is requiring someone to permanently give up a fundamental right in exchange for freedom.

Additionally, disabled people, particularly women, face increased barriers to accessing reproductive health care and assisted reproductive technology; for example, parents face discrimination based on doctor concerns about parenting, concerns about pregnancy complications, or concerns that a child will be disabled. Finally, large numbers of people with disabilities rely on Medicaid for health care; the Hyde Amendment ensures that Medicaid does not pay for abortion access, creating a large barrier for disabled individuals, or anyone, on Medicaid who wishes to access an abortion.

People with disabilities are, generally, deprived of sexual freedom because they are not viewed as sexual beings and concerns about reproduction and parenting ability. Disabled people may also be viewed as hypersexual. For these reasons and due to the general inaccessibility and inapplicability of sexual education to the experiences of disabled people, sexual education is also largely unavailable.

Parents with disabilities also lose their fundamental, constitutional rights more frequently than non-disabled parents. Disabled BIPOC are at even greater risk of losing these rights. Parents with disabilities face doubt and assumptions about their abilities that non-disabled parents simply do not.

In addition to being denied fundamental rights, disabled women are more likely to experience violence and gender-based violence than non-disabled women. Non-disabled individuals may also become disabled as a result of gender-based violence. This violence can cause disability such as post-traumatic stress disorder, other psychiatric disabilities, or physical disabilities, for example.

Finally, health care disparities are greater for disabled women than men. Women, in general, struggle to get doctors to believe and properly diagnose their conditions; women’s symptoms and complaints are often dismissed. As a result of dismissing pain, women are also more likely to be unable to access opioids and other painkillers to manage their symptoms. These disparities and dangers are greater for BIPOC women.

My first experience with this dismissiveness was when I was a child. I had constant gastrointestinal pain. My doctor refused to refer me to a gastroenterologist, claiming I was just “eating too many chicken nuggets.” All the while, I had been living with Celiac Disease, which had been destroying my intestines. Later in my life, it took almost two years to diagnose gallstones that had infected my gallbladder by the time it was removed. By that point, I had simply been told I had acid reflux and irritable bowel syndrome, and doctors had given up. Finally, it took years to diagnose my myotonic dystrophy. Throughout my life, I’d had pain, spasms, and other neurological phenomena that no one could diagnose. Even after my condition began to rapidly progress, doctors dismissed my concern that it could be a genetic or more multi-systemic condition. They also ignored my ideas about diagnoses. I brought up myotonic dystrophy as a possibility three years prior to official diagnosis. That diagnosis and my concerns were dismissed. It then took going to two different doctors to receive that diagnosis via a genetic test. I lost years of monitoring, physical therapy, and pain relief.

Disability issues are women’s issues. Disabled women are dying, losing their constitutional rights, and being stripped of their autonomy. These are, of course, not the only ways in which disability justice and women’s rights intersect. However, we cannot let these practices continue while calling ourselves warriors for gender equity; we must not forget about disabled women. When we discuss case law and constitutional issues at the forefront of the progressive and feminist movements, we must acknowledge the disabled women throughout history who have dedicated their labor and shared their stories to advance these movements and bring cases forward, how these decisions disproportionately impact disabled women, and the ways in which we, as lawyers, can work with and listen to the disabled community to effect broad change.

Marissa Ditkowsky is Tzedek DC’s 2019-2021 Gallogly Family Foundation Fellow. She also is a DC Lawyer Chapter leader.

 

 

Congress can (and should) enact a child allowance through budget reconciliation

Last week, Senate Parliamentarian Elizabeth MacDonough effectively vetoed Democratic plans to enact a $15 minimum wage as part of the COVID-19 reconciliation bill. Now, she may be on the cusp of wounding another major element of that bill: its program to send monthly checks to families with children. According to several senators, “MacDonough[ ] might strike the monthly payment feature this week by deeming it improper according to obscure Senate rules.”

Striking out monthly payments would be a major blow to families counting on the American Rescue Plan to deliver some measure of financial security. And it would also be completely uncalled for under Senate rules.

At issue is the plan by the Biden administration and Democratic members of Congress to significantly expand the Child Tax Credit and convert it into something akin to a child allowance (the subject of a recent panel led by ACS’s New York Lawyer Chapter). Under the American Rescue Plan, families would receive up to $300 each month this year for every child under six years old, and $250 per month for children ages 6-17. As President Biden has said, “If we get this done, it will cut child poverty in half.”

That would be a transformational accomplishment. And the monthly element of the plan is particularly important to its real-world impact on families -- monthly checks would simply be worth more to families than a once-a-year reduction in their tax liability. In their 2015 study of low-income families It’s Not Like I’m Poor, researchers Sarah Halpern-Meekin, Laura Tach, Kathryn Edin, and Jennifer Sykes found that families are forced into a boom-and-bust cycle, where they scrape by for most of the year until they claim benefits for working families -- such as the Child Tax Credit and the Earned Income Tax Credit -- during tax season. For these families, “[g]etting into debt and trying to dig out of it were near-universal experiences.” One study found that more than 80 percent of families receiving the EITC fork over some of their refund to pay down debt and overdue bills.

The status quo provides one month of feast and eleven months of famine based around the tax calendar. But paying out the government’s family benefits throughout the year rather than as an annual lump-sum refund would help lift more people out of poverty year-round. A 2014 study found that in comparison to those receiving a lump-sum tax credit refund, families who received advance periodic payments experienced improved financial stability, stress levels, and overall mental health. Advance-check recipients were also better able to stay out of debt, build savings, reduce their reliance on payday loans, and pay far fewer late fees in comparison to those receiving a single lump sum.

The upshot is that by withholding tax credits until filing season, the government forces families into debt and inflicts financial and emotional stress upon them. This imposes a scarcity mindset on low-income families, where poverty itself taxes their mental bandwidth, impedes effective decision-making, and takes a general toll on their psychic wellbeing. Researchers Sendil Mullainathan and Eldar Shafir have found that boom-and-bust cycles -- where people receive a large share of their income in a single lump sum -- produce these very harms associated with conditions of scarcity.

Monthly benefit payments would help combat these harms. Researchers have found that expansions of Canada’s child benefit -- which is paid out monthly instead of annually -- have led to improved health outcomes for children and higher test scores. That type of program would make a huge difference in the United States, where our abysmally high child poverty rate has been shown to impede children’s ability to learn and develop, and warp their physical brain composition, among other documented harms.

This all explains why monthly payments are so important to American families. But it’s also why monthly payments should easily pass muster under the Senate’s budget reconciliation rules. Budget reconciliation is the fast-track legislative process that allows the Senate to avoid the sixty-vote filibuster threshold to pass spending bills with just 51 votes (or 50 votes plus a vice-presidential tiebreaker). The limitation is that reconciliation can only be used for legislation with an impact on the federal budget, and excludes provisions that are “merely incidental” to budgetary purposes.

There’s no doubt that the American Rescue Plan’s increased value of the Child Tax Credit impacts the federal budget. And paying out those benefits on a monthly basis is hardly “incidental” to the budget either. Monthly payments are instead a way for Congress to ensure that benefits provided to families have their maximum impact. They allow the government’s dollars to most effectively alleviate the harms associated with poverty -- the strained mental health for families, jeopardized maternal health for new parents, deficient physical health for children, and more. These health gains in turn may well reduce federal spending on health care programs like Medicaid and CHIP.

Monthly payments to families should easily meet the standard for Senate budget reconciliation. And this is only an issue because the Senate refuses to do away with minority rule enshrined by the filibuster’s sixty-vote requirement for most legislation. But an end-run around the filibuster to create a child allowance is a worthy goal, and would have significant benefits for the families who need it the most.

Joel Dodge is a Staff Attorney for Judicial Strategy at the Center for Reproductive Rights, Lecturer in Law at Columbia Law School, and Co-Chair of ACS New York Lawyer Chapter.

Employers and Covid Vaccines – What’s Legal and What’s Not?

As the vaccines roll out and hopes rise about a return to pre-pandemic life, the reluctance of some to get the vaccine has led to questions about what employers can do to either mandate or encourage vaccination.  While it is far too early for any judicial decisions on the issue, Guidance from the Equal Employment Opportunity Commission (“EEOC”) provides some assistance in making the determination. The EEOC’s Guidance is not binding on courts, but may be considered by the courts because of the EEOC’s role in enforcing the relevant laws.  There is some case law regarding mandatory flu vaccines as well, which is largely consistent with the EEOC Guidance.

In general, the guidance indicates that mandating vaccines is lawful, but requires accommodation of individuals whose disabilities or religious beliefs would prevent vaccination.  In addition, depending on the vaccine provider, the questions that are asked before vaccination may constitute a medical exam, which the employer would have to justify under the Americans with Disabilities Act (“ADA”) if covered by the statute.  Providing incentives for vaccination instead of a mandate might also implicate the ADA.  Employers implementing vaccine programs must carefully consider their approach to avoid running afoul of legal protections for employees.

Employers that require vaccination must reasonably accommodate employees who have disabilities that prevent vaccination, unless the employer can establish that accommodation would cause undue hardship.  Undue hardship under the ADA is defined as “significant difficulty or expense.”  Under the ADA, the determination of the reasonableness of any accommodation and of whether undue hardship exists is always case specific.  Nevertheless, one can imagine accommodations that might be reasonable such as telecommuting, wearing personal protective equipment, or changing the structure of the workplace or job to minimize contact with other people. Some employers may be able to establish that having an unvaccinated employee in a job that requires close contact with other people poses a significant risk of viral transmission that cannot be ameliorated by other means, i.e., that the employee poses a direct threat to health and safety. For other employers, the accommodations will be sufficient to reduce or eliminate that risk.  The availability of accommodations should always be discussed with the requesting employee, as the law requires the parties to engage in an interactive process to ascertain the possibility of accommodation.  Further, the employer is permitted to request medical documentation of the need for an alternative to vaccination as an accommodation.

Like employees with disabilities, employees with sincere religious beliefs that preclude vaccinations must be accommodated, unless the employer can show that there is no accommodation that does not cause undue hardship.  Undue hardship for religious accommodations is easier for an employer to demonstrate, as it is anything more than de minimis cost or burden. If personal protective equipment and social distancing would reduce or eliminate the risk and is consistent with job responsibilities, an employee who brought and wore his or her own mask could probably be accommodated without undue hardship.

These determinations regarding accommodation will almost certainly be influenced by evolving medical knowledge about the pandemic. At present, it is not clear that vaccination eliminates the risk of transmission so if that is the concern, personal protective equipment may well be deemed equally protective. If scientific knowledge were to change, however, the accommodation requirement will change with it.

If no reasonable accommodation is possible and the unvaccinated employee poses a direct threat to self or others in the workplace, the employee may be barred from the workplace.  The determination of direct threat is guided by the statute and regulations. A direct threat is defined as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  Like reasonable accommodation, the determination of whether someone poses a threat must be individualized to the person and the workplace, and must be based on current medical knowledge. The regulations also contain factors that guide the determination, including the duration of the risk and the nature, severity, likelihood and imminence of the potential harm. Finally, while the individual posing the threat may be prohibited from coming to the workplace, before any discharge, the employer should be careful to insure that the termination does not violate any existing laws, including those that may be enacted as part of the next Covid relief bill.  For example, while the specialized leave provisions for Covid enacted in 2020 have expired, leave requirements may be reenacted. In addition, in light of the understandable suspicion that some people of color have of the medical community, terminations may fall more heavily on certain racial or ethnic groups, raising questions about discrimination.

According to the EEOC, employers who mandate the vaccine and provide the vaccine to their employees or employ a contractor to do so will be conducting a medical exam or inquiry under the ADA when they ask the pre-vaccination questions designed to ensure that the vaccine is safe for that individual.  Such inquiries of employees must be justified as “job-related and consistent with business necessity.” The guidance points out that to satisfy this test, the employer must show that an unvaccinated employee would pose a direct threat to self or others.  Voluntary vaccines provided by the employer do not implicate this statutory provision nor does a requirement that the employee obtain the vaccine from any available source. The difficulty with the latter is that in many places, obtaining a vaccine remains challenging without, and maybe even with, employer assistance.

Given the legal uncertainties surrounding mandatory vaccines, it is appealing to employers to offer incentives for the vaccine without requiring it, and some employers are choosing that route. Vaccine incentives come with their own legal uncertainties, however. If the incentive is substantial, it may raise the question of whether the vaccine is truly voluntary or effectively mandatory. The EEOC has addressed employer wellness programs in the context of the ADA and there is a possibility that a vaccine incentive program might be deemed a wellness program. ADA regulations require that wellness programs be voluntary if they require disclosure of any disability-related information, and as discussed above, the administration of the vaccine does.

In 2016, the EEOC promulgated regulations on wellness programs which limited the size of any incentive to 30% of the cost of self-only coverage for the employer’s lowest cost major medical plan. These regulations were legally challenged, however, and did not ultimately become effective. In January 2021, the EEOC issued a new proposed rule on wellness programs but its publication has been delayed by the Biden administration. It is unclear whether the proposed rule will be published in the Federal Register for comment as is, revised, or simply withdrawn. The as-yet-unpublished rule indicated that only small incentives were allowed in wellness programs that required response to disability-related inquiries.  But as indicated, there is no certainty that a vaccine program will be considered a wellness program. Regardless, the law relating to wellness programs certainly suggests that any incentive to vaccinate should not be too generous.

Finally, any incentive program, like a mandatory vaccine, may require reasonable accommodation for employees who cannot receive the vaccine because of a disability.  Employers should be prepared with alternative ways for such employees to earn the incentive. A Kroger program, for example, allows employees to earn the $100 vaccine bonus by taking an educational class.  Education about vaccine safety or paid time off to obtain the vaccine may be other ways to encourage employees to get vaccinated.

The Covid-19 pandemic has raised a host of new legal issues and caused us to rethink accepted ways of doing and being. While we all long for a return of the days when we can go to shops, restaurants and gyms without fear, employers should carefully consider what approach to take to the vaccines, in light of the ongoing legal uncertainty.