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Alabama Abortion Law Ruled Too Restrictive to be Constitutional

Defining the constitutional outer limits of abortion law has been one of the hardest fought battles in the history of law. To be frank it is a battle that continues to be fought throughout the nation. As the makeup of the Supreme Court shifts, it is one of the topics that is most keenly considered in selecting Justices. This is in large part due to the sheer number of laws on the issue coming out of or being considered by legislatures in the many states. This has been especially true in the last decade or so as states have taken increasingly hostile stances towards the practice-of the slightly over a thousand abortion restrictions made into law around 300 of them have come between 2010 and 2016.

Alabama has had a healthy share of these restrictions over time. In fact, it’s one of the most restrictive states in the country. As of now, Alabama laws require a woman to receive state-directed counseling and wait 48 hours before receiving an abortion, some means of abortion common elsewhere are restricted, public funding and health care for abortion is allowed only in cases of rape, incest, or when a woman’s life is in danger, a woman must undergo and ultrasound and be asked if she wants to see it before receiving an abortion, also abortions may only be performed up to 22 weeks after the woman’s last menstrual period. Also, if you’re a minor, you need to receive parental consent before you can receive an abortion.

Up until recently, the rules for minors didn’t end there. As part of their parental consent rule, Alabama includes a judicial bypass clause. This is required for such a restriction to be constitutional and basically means that a minor whose parents won’t consent can turn to the courts to rule that she is or isn’t mature enough to decide for herself whether she should get an abortion or whether an abortion is in her best interests as a minor. Alabama, however, went a little further to complicate this process for minors. In 2014, Alabama added an additional provision to the law–unique to Alabama–which added a sort of mini-trial to the proceedings. The new law added two extra hoops for these minors, and they were some serious hoops. First, a judge can appoint a guardian ad litem for the fetus–essentially a party whose job was to advocate for the fetus (sort of like a fetus lawyer) in all proceedings regarding a judicial bypass. Second, it required the local district attorney to be involved in the proceedings and allowed them to bring witnesses to the hearing to question the girl’s maturity. This basically meant that a girl’s friends, family, therapist, preacher–basically anybody connected to her–could be called as a character witness to one of her most vulnerable times.

alabama_abortion_lawFortunately, last week a federal judge struck down these additional provisions as unconstitutional. To understand why, let’s look at the case, the logic behind the act itself, and the constitutional law governing the type of abortion restrictions that a state can impose.

The Reasoning Behind the Ruling

The state’s argument behind the law was that it was designed to create a confidential and meaningful inquiry into a minor’s maturity when seeking an abortion without parental consent. However the ACLU, on the other side, said that the law did anything but. They argued that the teens seeking judicial bypass were subject to much less confidentiality than before under the law. The DA could call witnesses including anybody from a girl’s teacher to their boyfriend to the parents which refused to consent in the first place.

Ultimately, the actual legality of the law depended on whether the law was overly burdensome to the minors seeking an abortion. Under Roe v. Wade, a woman has a constitutional right to receive abortions. However, this is far from an absolute right under the current law. Just looking at the laundry list of restrictions on the practice in Alabama it’s obvious that there are some restrictions that can pass constitutional muster. The legal analysis for determining whether a restriction on access to abortion is constitutional was determined in 1992 in Planned Parenthood v. Casey. The Supreme Court held that a regulation is not constitutional when it creates a “substantial obstacle” to a woman receiving an abortion. This is not the most helpful of standards on its face, leaving a lot of room for interpretation. Fortunately, we’ve had some more clarification when it comes to parental consent rules.

To be acceptable, a parental consent law must include a judicial bypass which is effective, confidential, and expeditious. Useful, private and quick. Alabama’s law made their bypass none of these things. The judge in this case specifically noted that the many witnesses called ruined any potential chance of anonymity. The proceedings and appeals from the DA also made the hearings much longer than reasonable.

Under Supreme Court rulings, a judicial bypass must only consider whether a minor is mature and whether the abortion is in her best interest. Under Alabama’s act, the interests of the state, the parents, and even the fetus would have to be considered as well. This by itself would have been enough for the court to find Alabama’s law unconstitutional.

Tragic Circumstances Part of the Ruling

The law saw some seriously horrifying uses which certainly contributed to the judge’s ruling. The judge in this case noted one case in her ruling itself. Be warned before reading on that the circumstances of this case are incredibly disturbing. In the case cited by the judge, a 12-year-old girl was raped by a male relative-resulting in a pregnancy. The girl did not know her father and the rape occurred under the watch of her mother. In seeking judicial bypass to receive an abortion, she faced the full force of the DA’s office in opposing her access to the abortion. This led to an enormous amount of legal opposition to her motion that substantially delayed the proceedings. While the initial trial court granted her bypass, the DA even appealed this decision. While the minor ultimately won this appeal, the court noted how obstructive and intrusive this process was in reaching their decision.

There’s no doubt that the application and use of the law, acting as an enormous roadblock to vulnerable minors in terrible circumstances, was partially behind the ruling of the court and rightfully so. Abortion law is something that is highly vulnerable to change in the upcoming years, a more conservative Supreme Court could lead to limitations on a woman’s reproductive rights. However, as it stands, laws like Alabama’s are clearly unconstitutional. In fact, no court has ever found an adversarial process added to a judicial bypass constitutional. The judge here did the right thing, both under the law and in acting in the best interests of children in terrible circumstances.

Understanding Trump’s Military Transgender Ban

The relationship between Trump and the LGBT community is a confusing one to say the least–at least for Trump himself. During the election he repeatedly said that he would be better for the LGBT community than Hilary Clinton. At the same time, he went back and forth until finally coming out against transgender people using the bathroom of the gender they identify as. He also told Fox News he would “strongly consider” Supreme Court Justices who might reverse the famous Obgerfell ruling making same-sex marriage a constitutional right. As President he’s rolled back LGBT protections put in place by the Obama administration. During LGBT Pride Month, he decided not to make the now-traditional statement of support to the LGBT community. At this point, it’s pretty fair to say that-at a minimum-LGBT rights are not a priority for Trump.

Trump proved this once again after, just a few days back, he announced–through Twitter of all things–that he intends to ban transgender people from the military. The change, if made official, will have some serious repercussions which are worth taking a look at. With that in mind, let’s take a look at what Trump’s announcement will mean. However, in order to fully understand the implications of the decision, it’s worth starting with a look at the legal history between the LGBT community and the military.

History of the LGBT Community in the Military

The history between the military and the LGBT community has not always been the most friendly one to say the least. In 1921 the military declared homosexuality and “feminine characteristics” could render a man unfit for service. In ’42 the U.S. Selective Service System said that being homosexual disqualified somebody from the draft.

transgender banThings only got worse from there. In 1950, Army Regulation 600-443 made homosexuality an offense subject to court martial. If the person wasn’t “active” (openly gay) and was a “non-aggressive” homosexual (they didn’t have sex with men) they could leave the service with a honorable discharge. Otherwise, they’d either face court martial or be forced to take a dishonorable discharge depending on their situation. Transgender persons faced similar restrictions on service.

In 1972, homosexuality was once again confirmed as grounds for discharge or dismissal under Army Regulation 635-200. Just four years later, a court upheld this as grounds for dismissal in the case of a U.S. Air Force Technical Sergeant.

In four more years, in 1980, a federal district court finally ruled that discharging an Army Sergeant for being homosexual violated her First Amendment rights. The Army, however, chose to ignore the court’s ruling altogether. Eventually, unfortunately for the Sergeant in question, a federal appeals court once again sided with the military and the Supreme Court refused to hear her case. This was the state of the case law for quite some time, the Department of Defense issued directives stating that homosexuals were banned from military service in 1981 then followed up with similar statements three more times over the years–most recently in 2008.

However, even before 2008 there was a fair bit of movement on the state of the law when it came to LGBT persons in the military. The most famous of these changes came in 1993 with the advent of “Don’t Ask, Don’t Tell.” The policy, introduced by President Clinton, wasn’t actually a particularly enormous shift. Being LGBT remained an offense that would get you discharged (often dishonorably discharged) from the military. The policy forbad harassment or discrimination against closeted LGBT persons but still barred openly LGBT people from military service.

It wasn’t until two years into the Obama administration, in 2010, that things finally started really changing for the better. In early 2010, guidelines came out of the Pentagon which slightly increased protection from unproven allegations under “Don’t Ask, Don’t Tell.” However, the real change came at the end of the same year when Congress repealed “Don’t Ask, Don’t Tell” entirely. This lifted the ban of gays and lesbians serving in the military.

The situation was still no better for transgender persons wishing to serve. It would take another six years until their ban was finally lifted in 2016.  It had been a long battle for the transgender community, but they were finally allowed to serve their country if they so chose. Along with this change came access to the military’s medical insurance to help in transitioning genders. This occurred first, and most famously, with well-known military whistleblower Chelsea Manning. However, with Trump’s new change, these benefits are likely to be disappearing after only about a year.

The Effects of the Trans Ban

The obvious effect of Trump’s action-should it be made more official than a tweet-would be to bar transgender people from enlisting in the military. However, the less obvious issue is what will happen to the transgender people who have already joined the military in the last year. The Trump Administration has made it clear that they intend to follow through on Trump’s tweets. However, just how they will has not yet been fully explained.

The advent of “Don’t Ask, Don’t Tell” led to thousands of honorable and dishonorable discharges for homosexual service members. To make matters worse, the discharges often listed “homosexuality” as the reason for their discharge. These discharges are a member of public record, essentially outing these service members to employers or nearly anybody who cared to find out.

Just in the last year, as many as 15,000 transgender people have enlisted in the various branches of the military or came out as openly transgender after it seemed they would not be punished. Now they may face the same fate as the victims of “Don’t Ask, Don’t Tell.”If they end up facing dishonorable discharges it would take away basically all health and education benefits they would otherwise receive from their service.

As it is, military leaders have refused to take any action until the Department of Defense issues official guidelines and formal guidance on how they should proceed. For now, the only real action has been a delay on fully lifting the ban on transgender people in the military until January of 2018-a move that won’t affect people already enlisted. However, if the White House follows through on its plans, the reprieve will be short-lived.

Trump’s tweets cited medical costs and “loss of focus” as justifications for his ban, although he provided no support for these assertions beyond vague references to outside guidance. Trump’s actions may be in response to a bill defeated in Congress earlier this month which would have stopped the Pentagon from paying medical costs related to gender transitioning. Laws both protecting and curtailing these rights continue to develop in Congress from both sides of the aisle. It seems unlikely that the overall costs of allowing transgender people into the military will outweigh the benefit. As former Defense Secretary Ash Carter said when lifting the ban last year, “we can’t allow barriers unrelated to a person’s qualifications prevent us from recruiting and retaining those who can best accomplish the mission.” The very act of threatening a reinstatement of the ban, regardless of whether Trump follows through, undermines this goal. Trump isn’t just undermining the rights of the LGBT community, he’s potentially undermining the military itself.

Will the Real ID Law Prevent You From Flying?

One of the underreported details of the 9/11 attacks is that the hijackers illegally obtained Florida driver’s licenses to board the planes. Although a few of the IDs were forged, most of the licenses were real. The terrorists obtained their licenses by bribing a collaborator to certify their residency and then duplicating the licenses that they obtained. Congress responded to this chain of events by passing the Real ID Act. The Real ID Law requires that state driver’s licenses contain a minimum level of information before the holder is allowed to board an aircraft. For a state license to meet the standards of the Real ID Act, the license must contain:

  • Full legal name
  • Signature
  • Date of birth
  • Gender
  • Unique identifying number
  • Principal residence address
  • Front-facing photograph of the applicant

Additionally, the law also requires that the applicant present documentation of name, birth date, social security number and an ID with a photo or an ID with full legal birth name and birthdate. Yes, a person needs an ID in order to obtain a commonly used ID; but more on that later.

Real ID LawAlthough the Act was passed in 2005, five states, Missouri, Minnesota, Illinois, New Mexico, and Washington, have not updated their driver’s licenses to meet federal standards. This actually isn’t surprising; the Real ID Act was extremely controversial when it was first passed and it was doubtful that any states would actually comply. Missouri went so far as to pass a law in 2009 prohibiting state officials from even considering complying with the Real ID Act. However, the TSA forbids travel with state driver’s license that does not comply with the Real ID Act. People using driver’s license that do not meet the Real ID Act’s requirements would not be able to board a plane.

Alternatives to State ID

States have had a variety of reasons for opposing the ID law.Conservative leaning states saw the Real ID Act as federal overreach; liberal leaning states believe the requirement to have an ID to obtain an ID was discriminatory against minority groups that make less income. People concerned about having their birth date or parts of their social security number have opposed it. As a result, the federal government has often granted extensions to states to meet the requirements. Missouri was granted an extension if it agreed to repeal its Real ID Act ban. The extension would allow Missouri residents to continue using their non-complaint driver’s license until January 22, 2018.

Of course, the Real ID Act only affects driver’s licenses. If you use a driver’s license that doesn’t comply with the Real ID Act, you will be barred from entering the plane unless you have other forms of identification. So even if you live in one of the five states that still refuse to comply, you can always use a passport or an ID issued directly by the Department of Homeland Security to fly. Some states even issue licenses that comply with federal regulations even though they still use the old pre-Real ID Act licenses – check your local DMV for details.

On the other hand, these alternative identifications create additional expenses. Obtaining a passport, ID from DHS, or a state ID that matches the requirements will cost more money. This is a constitutional concern, as the Supreme Court has historically found traveling between states to be a fundamental right. Charging people extra money would potentially burden this right. Unlike voting though, there are other means of moving around the country. It is possible to travel from New York to Missouri by driving a car, riding a bus, or forming a carpool. With states like Missouri reversing their Real ID Act ban, it’s only a matter of time until all state driver licenses are regulated by federal standards.

Voter Fraud Investigation: No Injunction to Stop Data Gathering

In the wake of our most recent election, both sides of the political aisle have been consistently calling foul on the election process itself. On one side, the potential of Russian influence on the election has cast a shadow over the Trump administration. On the other side, Trump himself has repeatedly made unsupported allegations of rampant voter fraud since well before he was even elected. During the election, he claimed there would be millions of illegal votes cast and called upon supporters to act as “poll watchers“–a practice that ended up flirting with violating federal voter intimidation laws.

Since President Trump’s election, he has not changed his tune on the existence of voter fraud in the least. In fact, he has doubled down on the claims by using an executive order to create a Presidential Advisory Commission on Election Integrity to investigate his claims. While Trump has not backed down from his claims, the facts certainly don’t seem to support the rampant voter fraud he describes. In the last 14 years, studies have shown about 241 cases of fraud out of around a billion votes cast. This translates into around .000024% of votes.

What is the Latest in Voter Fraud Claims?

Regardless of these statistics, Trump’s Voter Fraud has taken its role extremely seriously-controversially so. In a recent example of this, the Commission sent out a letter demanding voter roll information from every state in the U.S. This was no small ask. The request would have required turning over the name, partial social security number, address, date of birth, political party affiliation, and–this one’s the kicker–the last ten years of voting history of basically everybody who’s ever voted in this country. To say that turning over this information has the potential for abuse is more than an understatement. The same letter requesting the information said that the documents provided to the commission may eventually be made public, adding another layer to the controversy. As of now, around 20 states have already flatly refused the request. Even Kansas, the home state of the Vice-Chair (and defacto head) of the Voter Fraud Commission Kris Kobach, has only agreed to partially comply with the extreme request. 44 states are going to be withholding at least some of the requested information.

Kris Kobach himself is another part of the controversy surrounding the Commission. As the Secretary of State of Kansas he is well known as an outspoken believer in the voter fraud claims of Mr. Trump. He also has a bit of a checkered history when it comes to voter fraud. Just last month a federal judge fined him $1,000 for “presenting misleading arguments in a voting-related fraud.” He has also pushed through very strict voting laws; laws which have been accused by some of intentionally diminishing minority voting rights.

Voter FraudThis same issue, the potential to suppress minority voters, is a criticism Mr. Kobach’s Commission has also been accused of. There have been a number of lawsuits from groups such as the NAACP and the ACLU accusing the Commission of using “unfounded allegations of voter fraud” to target the voting rights of Black and Latino voters. One of their complaints specifically alleged that “the creation of the Commission, and its pending investigation into allegations of voter fraud, were motivated by racial discrimination against voters of color.”

Earlier this month however, in a suit brought by Lawyers’ Committee for Civil Rights Under Law (LCCRUL), these lawsuits took their first big loss. LCCRUL’s lawsuit ultimately seeks to shut down the operations of the Commission altogether as well as force them to return all information they had gathered, and destroy all copies of that information. However, this sort of a lawsuit takes time. For now, they had filed a motion attempting to require the Voter Fraud Commission to hold an open meeting and disclose records about the goings on and goals of the Commission. A Federal Judge shot the request down.

The FACA and Preliminary Injunctions

The essential elements of the claim against the Voter Fraud Commission revolved around two things: a fairly obscure law known as the Federal Advisory Committee Act (FACA) and the special nature of a motion seeking a preliminary injunction (a ruling forcing a party to do or not do something before the case is actually litigated.)

The FACA essentially is a set of transparency requirements on advisory committees such as the one under Mr. Kobach. It requires public charters before holding meetings, timely notice of those meetings to the Federal Register so their times can be published, hold meetings open to the public, keep minutes for those meetings, and allow those who want t to attend or file statements with the committee. FACA also requires much of the paperwork and documents generated by such committees be available to the public for viewing and copying. Finally, the law requires advisory committees to be fair and balanced–not overly influenced by an the person who made it, a special interest, or any particular point of view.

LCCRUL was essentially arguing that the Voter Fraud Commission wasn’t holding sufficiently transparent meetings or making it’s records properly available to the public. Unfortunately for them, this simply does not seem to be the case. The Commission filed a charter, noticed their meetings with the Federal Register, and made the meetings available to the public through live streaming on the internet. On the other hand, they didn’t give an opportunity for people to speak or comment on their first meeting–simply promising to do so in the future. They also have failed to respond to requests from the public to look into documents regarding their goals and methods.

You can see, there’s mixed facts here when it comes to the FACA–and that’s what did this preliminary injunction in. In order to succeed in making a court tell a party to do or not something before fully proving your case you understandably need to show that you’re more likely than not going to win if you were to take the issue to court. If we didn’t have such a high standard, preliminary injunctions would be particularly vulnerable to abuse. The truth is there are facts here that could support an argument that the Voter Fraud Commission has not lived up to its FACA obligations. However, the case is far from strong enough to reach the likelihood of success required for this sort of motion–it’s no surprise the court refused to take such drastic action.

The Future of the Voter Fraud Commission

So, you may be asking if this is the beginning of the end for the efforts taken to curtail the actions of the Voter Fraud Commission. However, the fact that the high standards of a preliminary injunction were a bridge too far in this particular case doesn’t make it a death knell for the many lawsuits brought against the Commission. Even in this ruling, the court noted several times how controversial the Commission is. The judge especially noted the sheer amount of information the Commission seeks to gather on voting history.

What’s more, the ruling here was made without prejudice. This means that, while the facts here weren’t enough when the court considered how much harm might be done by not opening this meeting to the public, if the facts change the issue may be revisited. There is a lot of ground left to cover in this lawsuit and in the several other like it. After all, the motion has preliminary right in the name.

Discrimination Protections are Reduced After Missouri Signs Bill to Protect Businesses

Missouri is rolling back employment discrimination protections to protect businesses from frivolous lawsuits. At least, that’s the rationale Governor Eric Greitens would have everyone believe. The new law, SB 43, will go into effect beginning April 28 of next year. Previously, employees in Missouri only had to show that discrimination was one factor in their demotion or dismissal to bring a suit. Under the new law, employees must show that discrimination was “the motivating factor” or primary cause of their demotion or termination. Additionally, the bill would cap the amount of damages that an employee could receive and would restrict such suits to businesses. Employees would not be able to sue individuals, such as their supervisors, for discrimination. The bill applies the same restrictions to housing and public accommodations.

discrimination protectionsThe bill is extremely controversial in Missouri, in part because the sponsor of the bill, State Senator Gary Romine, owns a business that is being sued for alleged discrimination.  The employee in Romine’s case alleges that his supervisor calls him “nigger” and that there is a map in the back of the store circling a black neighborhood with the words “do not rent” underneath. Romine denies any wrongdoing in the case and insists that his bill was aimed at frivolous lawsuits without any consideration for the case pending against his company. Nevertheless, the NAACP and other critics accuse Romine of self-dealing while sponsoring and passing the bill.

The Downfall of Mixed-Motive Cases?

As promised, these restrictions will doom many employment discrimination suits. In an at-will employment position, an employer can fire a worker for any reason except for reasons that are prohibited by law. However, it’s rare today for employers to admit to terminating an employee purely for illegal reasons. Instead, the suits often involve cases where the employer dismisses an employee for a mix of legal and illegal reasons. For instance, if a woman is denied a promotion because her performance review says “she berates the staff” and that she “overcompensates for being a woman,” she might have an actionable suit based on the latter comment. However, the former comment would be a justifiable reason for the business to deny her a promotion.

Under federal law, an employer that has both legitimate reasons and illegitimate reasons will be liable for discrimination. If the employer can prove that it would have treated the employee the same without the illegitimate reasons though, reinstatement, back pay, and future pay will be denied to the employee. States have taken different positions on mixed motive discrimination. Many states have adopted the federal model. Other states permit the employee to prevail even he or she can show that an illegal reason exists, regardless of whether there were other legitimate reasons.

The Future of Missouri Businesses

Missouri has changed from a “no impressible motive whatsoever” position to a legal regime where discrimination must be the “dominating factor.” In other words, for Missouri employees to prevail now, it is not enough to show that the employer was discriminatory. If the employer might have had other reasons for dismissing or denying a promotion, the employee must show that discrimination was the most significant reason for loss of employment or promotion. Previously, the woman who sued for losing her promotion to comments that she “berates the staff” and that she “overcompensates for being a woman,” would have won because the second comment was proof of discrimination. Under the new Missouri law, it is not enough that the second comment exists. Instead, the second comment must be the #1 reason the woman lost her promotion.

Although this structure will undoubtedly force many employees out of the Missouri courthouse, the dominate motive structure is not an unusual one. Even states as liberal as California use the dominate motive instead of the mix motive framework to balance the fight between employers and employees. Instead, the most egregious aspect of SB 43 is that it caps damages. If a state forces a plaintiff to jump through hoops, like establishing dominate motive, it seems overly cruel to limit the damages that a plaintiff can obtain if the plaintiff wins. Employment lawsuits can be long and draining as they are. Missouri has doubled the time, expense, and difficulty for employees to collect a judgment, but it has reduced the amount of money that the employee gets even if the employee does everything correctly. It adds insult to injury if an employee can claim she was discriminated, but gets less for it.