Author Archive for Pearl Rimon

The Unheard Cases on Justice Scalia’s Docket

The late Justice Scalia’s vote on the cases to be heard on the Supreme Court’s docket may have been obvious to his fellow justices and others. However, they count for nothing in regards to the Supreme Court’s decisions. On cases where the Court splits 4-4, the only options are to leave the lower court ruling in place and have no precedent set for the rest of the country or hold the case until a replacement is confirmed. The issued opinion will read “The judgment is affirmed by an equally divided court.” It is likely that in the event of a tie vote that the Court will order the case to be argued again once a new justice is selected.

Currently, the Court has three conservative justices: Chief Justice Roberts, Justice Thomas and Justice Alito. The liberal justices are: Justices Kagan, Breyer, Ginsburg, Sotomayor. Justice Kennedy, a Regan appointee like Scalia, is the swing vote of the Court. Supreme Court

Abortion: The justices will decide on Whole Woman’s Health v. Hellerstedt, which challenges a Taxes abortion law requiring doctors who perform abortions have admitting privileges at hospitals and will require clinics to have hospital-like standards. The lower court ruled in favor of the provisions. If the Supreme Court is split, this ruling would stand and the number of clinics left performing the procedure would be about 10, from the 40 currently existing.

Immigration: The court will decide on United States v. Texas, a case focused on whether President Obama’s executive actions regarding immigration were constitutional. Twenty-six states, including Texas, are challenging programs that would allow undocumented immigrants to apply for work authorization and associated benefits. The lower courts have temporarily frozen the programs and are siding against the administration.

Affordable Care Act: The court is scheduled to hear Zubik v. Burwell, a challenge to the contraception mandate in the Affordable Care Act (Obamacare). The challengers of the mandate include hospitals and universities, stating that they have religious objections with the requirement of providing birth control coverage. This was likely going to be a win for the conservatives of the Court, but is now assumed that it will end with a 4-4 opinion.

Justice Scalia did hear several cases, but passed away before the Court could issue an opinion on the cases. Many scholars made educated guesses on how the Court would be divided on each issue. Justice Scalia’s record in the Court allows scholars to predict which way he would have voted. Draft opinions written by Justice Scalia will not count towards a vote though, because an opinion is not official until it is released to the public.

However, these cases, similar to the cases that were never heard by Scalia, will be decided by an eight person Court in most cases unless a justice recuses him or herself. One of these cases is Fisher v. University of Texas, a case regarding affirmative action, where Justice Kagan recused herself due to prior involvement as solicitor general.

Justice Scalia And The Next Supreme Court Justice

In addition to the race for the White House, the death of Antonin Scalia has launched another battle over power, this time in the Supreme Court. The death of Justice Scalia leaves the Court not only with an even number of justices, but evenly divided between liberal and conservative justices.

The Constitution gives President Obama the power to nominate justices to the Court, the Senate then must hold a hearing to vote on the nomination and a majority of 51 votes is needed to confirm the nominee. President Obama nominated Justices Kagan and Sotomayor to the nation’s highest court. However Justice Sotomayor was confirmed in a vote of 68-31 in a Democrat controlled Senate, with the vote being largely along party lines. Justice Kagan was similarly confirmed in a vote of 63-37 also largely along party lines.  Scalia

The Republican controlled Senate has already stated that Obama should not name a replacement and should leave it for the next President. Senate Majority Leader Mitch McConnell firmly believes that there should be no confirmation until the next President starts their term, which is not until January 2017. “The American people‎ should have a voice in the selection of their next Supreme Court Justice,” he said in a statement. “Therefore, this vacancy should not be filled until we have a new President.”

Leaving Scalia’s vacancy should not even be considered a possibility because the Court is set to decide on cases involving voting rights, abortion, affirmative action and immigration, all of which are hot button issues for the presidential candidates. White House spokesman Eric Schultz said, “The Constitution does not include exemptions for election years or for the president’s last term in office. There’s no exemptions for when a vacancy could tip the balance of the court.”

The Chairman of the Senate Judiciary Committee, Charles Grassley (R-IA) has stated “that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year.” However, Grassley’s statement is untrue. Justice Brennan was appointed by President Eisenhower a few weeks before Election Day and President Reagan nominated Justice Kennedy with only a year left to his term.

President Obama has precedence on his side for appointing a new Supreme Court Justice. In fact, it would be unprecedented and unreasonable should the vacancy remain for over a year. What Senator McConnell (R-KY) and other Republicans echoing his sentiments fail to realize is that the American people do have a voice in the selection of the next justice; they had their voices heard in 2012 when they voted Barack Obama for another term.

A vacancy in the current state of the Court, with the equal number of liberal and conservative justices, for the current term would mean that many of the Court’s decisions would end up as a tie. Tie votes would uphold the lower court’s ruling. The next cast to be heard by the justices is set for March 2 and is centered on abortion clinics in Texas challenging a state law that imposes many restrictions on doctors and facilities. Following that case is a case centered on contraception where religious non-profits seek an exemption to the Affordable Care Act’s mandate that employers pay for contraceptives. It is very unlikely that Obama can appoint and have his nominee confirmed by those hearings, and the Court is likely to end in a tie.

It is in the best interest of our country for Senate Republicans to not automatically block any nominee by President Obama because it would not only be unprecedented, it would hold our highest court back from working effectively. The nominee should be confirmed or vetoed based on their own merits, not vetoed simply because they were nominated by Obama.

California Legislature Finally Approves Assisted Suicide

California lawmakers recently approved a landmark bill, the “End of Life Options Act,” that would allow doctors to help terminally ill patients die with dignity. California joins Oregon, Washington, Vermont and Montana as the only states where physicians can prescribe life-ending medication. Many more states have considered legalization of other types of physician-assisted suicide, but none have successfully passed legislation on the issue.

The bill passed through the State Senate by a vote of 23 to 14 and was signed by Governor Jerry Brown earlier this month. The new law is similar to that of Oregon’s except for two notable changes. First, the law would expire after ten years and must be reapproved. Second, doctors must have private Assisted Suicideconsultations with patients to ensure that the choice to end their life was not coerced. The bill would allow patients to request a prescription to end their lives if they were mentally competent and if two doctors agree that they only had six months to live. Further, patients would have to ask for the drugs three times before receiving them. One request must be in writing and in front of two witnesses.

The safeguards in the bill will hopefully prevent others from taking advantage of those choosing this option. However, a patient suffering from a terminal illness may be more vulnerable than a healthy person. Some patient advocates are concerned that family members of a patient might pressure them to pick this option, either for financial gain or to stem future medical costs. To address this potential problem, coercing or tricking the patient to opt into physician-assisted suicide would become a felony under the bill.

Death With Dignity

Proponents of the bill argue that it is necessary to allow those in the final stages of terminal illness to pass peacefully. This bill allows individuals who are in agony from the final stages of a disease to die with some dignity. Assemblyman Luis Alejo (D-Watsonville) voted for the bill due to his own family’s struggle with illness. His father is a Vietnam veteran who is slowly dying from terminal bone cancer. Before her physician assisted death in Oregon, California brain cancer patient Brittany Maynard also lobbied for the bill. As she put it: “I refuse to subject myself and my family to purposeless, prolonged pain and suffering at the hands of an incurable disease.”

While economic incentives should not be the primary considerations in ending a life, the bill will provide some families an alternative to skyrocketing medical bills.  “As soon as this is introduced, it immediately becomes the cheapest and most expedient way to deal with complicated end-of-life situations,” said Dr. Aaron Kheriaty, director of the medical ethics program at the University of California, Irvine, School of Medicine. The expenses of keeping a relative alive through expensive treatments and hospitalizations dwarf the cost of the assisted suicide medication. However, as Dr. Kheriaty notes, the “underinsured and economically marginalized” did not necessarily back the bill. “Those people want access to better health care.”

For many years, the California Medical Association opposed physician assisted suicide, but has recently taken a neutral position. The American Medical Association, the California Catholic Conference, and the Disability Rights Center all opposed the bill. One group called A Hard Pill to Swallow warns that “legalizing suicide for the terminally ill and disabled, while offering anti-suicide resources for the rest of the population, teaches that the lives of the ill and disabled do not matter to our society.” Critics also say that some doctors will now be abandoning an important principle of medical ethics: “first do no harm.” What is needed, they say, is quality palliative care for all dying patients. Finally, in spite the checks and balances in place, they believe the bill may create conflict and unethical behavior within families— particularly where money is concerned.

The legislature and Governor Brown clearly had to wrestle with the moral implications of this bill. Governor Brown said: “in the end, I was left to reflect on what I would want in the face of my own death.” I believe that signing the End of Life Option Act into law was the right decision. Allowing patients to end their lives gives them the dignity to die the way they choose, not in a weakened state of suffering. It gives them power in a time of their lives when they are otherwise feeling quite helpless. Having this option available is a big stride for individual rights. Terminally ill individuals should be allowed the right to consider the options this new law provides.

Red Team vs. Blue Team: Gun Control

Today’s article is a special two for one: two of our writers debate the merits of gun control. Who do you think makes the most convincing argument?

Current State of Gun Control Legislation Requires More Gun Control

By Pearl Rimon

Random acts of gun violence have been a prominent leading story in U.S. headlines for decades. Last month, a gunman killed two people and injured nine others in a Louisiana movie theatre and a gunman fatally shot nine people in a church in Charleston, both purchased their guns legally; this occurred the same month James Holmes was convicted on twenty-four counts of first-degree murder for a shooting in Aurora, Colorado. These horrific events trigger debates about the current state of gun control laws in our country.

Mass killings have been on the rise in America even though gun ownership is declining overall. However, the support for gun rights in America remains resolute. The tragic shootings of churches, elementary schools, and movie theatres are not enough to motivate lawmakers to enact stricter gun control laws. In research conducted by Mother Jones tracking mass shootings since 1982, a majority of the shooters had obtained their guns legally.  Cat Stakeup

The region with the highest percentage of guns in a household is unsurprisingly the South. States with stricter gun control laws have fewer gun related deaths, but this statistic nor the recent mass shooting tragedies have motivated legislators to enact new laws. Shockingly, after the Newtown Massacre, the Pew Research Center found that Americans showed more support for gun rights than gun control.

Congress has not passed new gun control laws since the 1993 Brady Bill and the now expired 1994 Federal Assault Weapons Ban. In the aftermath of the Sandy Hook shooting, Congress failed to pass background check legislation. There has not been significant gun control reform since then.

Gun Control Laws

There are federal and state gun regulations in place that try and curb gun violence. However the number of gun deaths in the U.S. compared to other countries that do not have the Second Amendment right to bear arms makes it clear that these gun control laws are not as effective as they could be. For instance, according to 2013 statistics, Brazil has almost the same homicide rate as Washington D.C.

Seattle and Cook County, IL have taken the typical federal and state laws a step further and have imposed a $25 tax on guns and a 5-cent tax on bullets sold within the city limits. This new law is referred to as a “gun violence tax” since proceeds will be used for prevention and research programs to reduce violence. Chicago has banned possession of certain semi-automatic firearms defined as assault weapons and magazines that hold more than 15 rounds of ammunition. Previously, Chicago prohibited the sale of firearms within city limits but it has since been overturned for being unconstitutional.

Federal law requires background checks for all gun sales by federally licensed gun dealers; this is one of the provisions part of the Brady Bill. However, this does not prevent sales between private individuals and sales at gun shows from being conducted complying with federal law. Since 1998, 202 million background checks have been conducted with only 0.5% of purchases were blocked, the most common reason being prior felony convictions.

Recently, three Senate Democrats (Chuck Schumer-NY, Murphy and Blumenthal-CT) are attempting to impose gun control change by appealing to retailers of guns due to the failure in advancing legislation. A loophole in federal law allows firearm transactions to proceed if a background check is not completed within three days, the Senators are asking retailers to require completion of background checks to close the loophole. This loophole has proven to be deadly, since it is how Dylan Roof, the shooter of the Emanuel African Methodist Episcopal Church in Charleston, procured the gun he used.

The “gun culture” in this country obviously stems from the Second Amendment. The U.S. has the highest rate of gun ownership in the world, as well as the highest rate of homicides among advanced countries. According to studies there are 88 guns for every 100 people. Following the Charleston church shooting, President Obama stated “At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries,” he said. “It doesn’t happen in other places with this kind of frequency. And it is in our power to do something about it. I say that recognizing the politics in this town foreclose a lot of those avenues right now.”

“The only thing that stops a bad guy with a gun is a good guy with a gun,” said Wayne LaPierre, NRA’s executive vice president. Apparently, the American public agreed with LaPierre following the tragic events of Newtown. However, the dangers of untrained people shooting guns seems like it would lead to a larger body count. The focus should not be on arming more people with guns, due to the likelihood of accidental shootings and injuries. Instead, the focus should be on enacting stricter gun control laws and closing any existing loopholes in background checks.

Reforming Mental Health, Not Guns, Will Prevent Mass Violence

By Jason Cheung

Gun control proponents often criticize the Second Amendment as the reason for mass shootings in America. However, if we expand “mass shootings” to “mass violence,” America is actually not different from the rest of the world in large scale acts of violence. Therefore, the solution to mass violence lies not in restricting the type of weaponry used by the killers, but in addressing the underlying psychological issues the killers have in common.

On the same day the Sandy Hook Massacre took place, another mass killing occurred across the Pacific Ocean. In Chenpeng Village, China, a 36 year old man stabbed 23 children and 1 elderly woman. Private gun ownership is almost completely illegal in China, so the Chenpeng attacker used a knife instead. The Chenpeng stabbings were not an isolated incident. In China, there have been at least 11 mass stabbings from 2010 – 2014. In contrast, there have been at least 14 mass shootings in the United States during the same years. The numbers are not greatly different. President Obama was wrong in claiming that mass violence is unique to America. These incidents show that mass violence is a problem shared by many nations.  Panda with a gun

Gun control proponents might argue that a stabbing is safer than a shooting. It’s true that a gun can kill people faster than a knife, but knifes can be just as fatal as guns. The fact that dozens of people have died in some of China’s mass stabbings indicate that a man with a knife in the right location can be as dangerous as a gunman. Guns are loud and can alert other potential victims to the attacker’s presence. In contrast, knifes are silent and thus the attacker can stab more people before anyone has time to flee. Although it takes more skill to use a knife, the need for skill is not as great if an attacker can simply board a crowded train or walk into a classroom.

It is also incorrect to assume that “gun culture in this country obviously stems from the Second Amendment.” The U.S. began in a rural environment with plenty of game and numerous Native America efforts to recover their land. Until the 20th century, Americans constantly expanded westward, and often relied on guns for hunting and protection. The rural environment made guns a necessity. The urban environment of America in the modern and contemporary era makes guns less attractive.

Our history and geography explains why gun ownership is declining – most of the population now resides in urban cities on the coasts. People who live in urban environments have less incentive to own a gun and urban governments are more likely to pass gun control laws. However, many parts of the South are still a rural environment, where hunting is prevalent and spread out residential areas require more self-defense. The Second Amendment is not the cause, but an effect of gun culture.

Mental Health Reform

It is important to recognize the role the Second Amendment plays in our culture. If the Second Amendment is a byproduct and not a cause, then reinterpreting the Second Amendment to allow for greater restriction of guns would not stop the violence. China has outlawed private gun ownership, but mass violence still exists in that country.

However, there is a factor that mass shootings in America and mass stabbings in China have in common. The attackers are typically men in their twenties or thirties from low economic backgrounds and/or have mental issues. Many of the recent cases of violence involve ethnic tensions. Charleston was an attack against a black church and China’s most deadly mass stabbing in 2014 involved Muslim extremists from its western provinces.

Ms. Rimon points to Brazil as an example of a less violent nation, with 2013 statistics on Brazil showing a homicidal rate equivalent to that of America’s capital. Brazil has some forms of gun control, including gun registration, a minimum gun ownership age of 25, and a ban on gun carrying outside the residence. On the other hand, Brazil has the second largest arms industry in the Western Hemisphere, guns are often smuggled back into Brazil, and its voters’ rejected a 2005 proposal to ban civilian gun ownership. Brazil is not as extreme as either the U.S. or China in its gun control or gun rights, so Brazil’s statistics can hardly be attributed to its gun policies.

What Brazil does have that China and the United States does not, is that Brazil reformed and expanded its mental health services in the 1990s. In contrast, the United States and China have allowed their mental health services to wither. The United States has cut mental health budgets, most of the remaining budget is spent on ineffective medication, and any available treatment is usually too expensive for the men most likely to go on a rampage. Obamacare’s mental health mandate may do more to prevent mass shootings than any gun control measure passed. Instead of gun control, the focus should be on reforming our mental health services and providing greater care to those who most need it.

Embryonic Custody: An Emerging Legal Battlefield Featuring Sofia Vergara

One of the stars of Modern Family, Sofia Vergara, is currently in a custody dispute with her ex-fiancé, despite the fact that the two have never had any children together. Her ex-fiancé, Nick Loeb, wrote an op-ed featured in the New York Times that brought attention to a fairly new kind of custody battle: embryonic custody.

Sofia Vergara Embryo Custody DisputeThe frozen embryos, technically known as pre-embryos until their implantation in the uterus, were created in 2013. The medical directive signed by both parties states, “We understand and are aware that we may change this Directive. However, any and all changes must be mutually agreed to between both named partners. One person cannot use the Cryopreserved Material to create a child…without explicit written consent of the other person…”

Custody battles over embryos are the result of the rising popularity of in vitro fertilization (IVF). As stated in Loeb’s article, there are ten similar cases in the U.S. where one parent wants to take the embryo to term while the other parent opposes the action. Out of the ten cases, only the Pennsylvania (Reber v. Reiss) and Illinois (Szafranski v. Dunston) courts ruled in favor of the party who wished to bring the embryo to term.

How Do Courts Decide Embryonic Custody?

Courts take one of three approaches in deciding custody of a pre-embryo: a balance of interests test, a contracts approach or the mutual consent approach. In deciding traditional child custody cases, courts look to the best interests of the child. The juxtaposition between the two balancing of interests methods is a gray area for the courts because in the traditional custody cases, courts base custody on the best interests of the child and look at a variety of factors. In the balance of interests test for embryos, the court only looks at one factor: one party’s desire to use the embryos against the other party’s desire not to.

The courts believe there is a special interest when the embryos are a parties’ last chance to have a biological child, which tends to result in the case being decided in favor of the party who wishes to bring the embryo to term. The reasoning for both the Pennsylvania and Illinois courts were near identical: both women underwent chemotherapy and the embryos were their last chance to have biological children. The judges ruled that their interest in becoming a parent to biological children outweighed the opposing party’s interest in not bringing the embryos to term.

Loeb v. Vergara – Who Will Win?

There are many parallels with the IVF cases and the abortion cases heard by the Supreme Court, the most prominent is raising the question of “When does life begin?” Loeb believes that the embryos he created with Vergara should be brought to term because he says, “Lives were already created.”

Under the approach of the best interests’ of the parties, Loeb is likely to lose because there are no indications that the pre-embryos he created with Vergara are his last chance at a biological child. Under the traditional contracts approach, favored by the American Medical Association, Loeb also is likely to lose because the two parties signed a medical directive that requires the consent of both parties to bring the embryos to term.

It remains a likely possibility that the  Supreme Court will rule on a case regarding IVF custody (the only IVF related ruling the Court has issued is on IVF and social security in Astrue v. Capato) due to the complex moral, legal and ethical complications that arise with cases similar to Loebs’ and the growing popularity of the procedure.