Archive for the 'Health Care' Category

Teenage Illegal Alien Right’s to an Abortion: The ACLU’s Lawsuit

A lawsuit over a 17-year-old illegal immigrant’s right to get an abortion has seen many twists and turns since it was brought by the ACLU a little over a month ago–the most recent of which happened only days ago. The girl in question, known only as Jane Doe in court documents, was caught crossing the border in September and learned shortly after while at an immigration detention center specifically for illegal alien minors that she was pregnant. She did not want to carry her pregnancy to term however, following Trump administration policies, the detention center refused. They instead took her to religious counseling sessions to convince her not to get an abortion and to a clinic to get ultrasounds of the fetus which they then showed to her.

All this is part of a policy implemented in March requiring approval from the U.S. Office of Refugee Resettlement before a shelter can release a non-citizen minor to get an abortion or abortion-related service. The director of this office, Scott Lloyd, has long been outspoken in his condemnation of abortion and women who get abortions. He has made public announcements, in the wake of the policy, that he would allow no abortions whatsoever for and only allow release for “pregnancy services and life-affirming options counseling.” Texas officials have made it clear that they also will allow no abortions.

Under Texas law, a minor requires either parental approval or court approval before receiving an abortion. However, even after receiving court approval to get an abortion, the shelter Jane Doe was staying at refused to take her to a clinic where she could get an abortion. After this, the ACLU brought a lawsuit on behalf of Jane Doe to secure her right to an abortion and challenge the policy itself.

This is a matter that has seen very little litigation, so there were quite a few eyes on the case ruling. Just weeks ago, the court ruled on the issue in favor of the ACLU–leading to a twist in the case before an appeal was brought. Let’s look at the lawsuit, the ruling and this most recent twist in order to understand what this case means for the rights of illegal aliens to an abortion.

The ACLU Lawsuit

As we discussed earlier this week, illegal aliens have quite a few constitutional rights including 1st, 4th, 5th, and Equal Protection Act protections. This, along with the obligations of the government to take care of unaccompanied minor illegal aliens–an obligation which the government has recently been found in breach of–formed the cornerstone of the ACLU’s case.

The ACLU argued that the policy violated First and Fifth amendment rights by forcing these minors to receive approval before gaining access to an abortion–something far beyond the usual constitutional protections granted to citizens under the law. This is especially true because the policy provides no explicit exceptions, even for victims of rape. They argued that this, along with forcing minors to attend religious counseling discouraging abortions and requiring them to get approval from either parents or a sponsor before getting an abortion, violated the Fifth Amendment right to privacy. They argued they violated the First Amendment by compelling unaccompanied immigrant minors to discuss their decisions to have abortions. The lawsuit also alleged that requiring religious counseling violated the Establishment Clause of the First Amendment.

ACLUThe Flores agreement  is a government agreement which requires the government to provide care for unaccompanied illegal alien minors up to a certain minimum standard. This includes a requirement to provide medical care, specifically including family planning services and emergency health care services. The lawsuit argued that the government policy did not live up to these obligations.

The District Court’s Ruling

The federal district court sided with the ACLU, signing an order allowing Jane Doe to receive an abortion. The judge in the case called both the shelter’s actions and the policy itself “shocking” and “unconstitutional.”

To make the ruling simple, the decision essentially came down to the court stating that it is well established as unconstitutional to outright deny access to abortion–whether it is applied to a citizen or an illegal alien. By following the state rules of Texas when it comes to receiving an abortion, Jane Doe had the equal protection of the law and was constitutionally allowed to receive an abortion.

The order required the shelter to “promptly and without delay” transport Jane Doe to the nearest abortion clinic and allow her to obtain an abortion.  It is important to note however that the order does not yet extend to challenging the policy.

The Case Takes a Twist

The government refused to comply with the court’s order, and appealed the case. However, the appeals court supported the lower court ruling–although they delayed the abortion slightly to seek a sponsor for Jane Doe. This delay was potentially a serious issue for Jane Doe. Texas law does not allow nearly any abortions after 20 weeks of pregnancy, at 15.5 weeks Jane Doe was nearing the point where the case would become moot.

Even after this, the government made it clear that they would take the case all the way to the Supreme Court. They argued that there is no established constitutional right to an abortion while in federal custody. They also interpreted the rules of the Flores agreement to require the care of all minors in their custody–including unborn fetus’ such as Jane Doe’s. This is an interpretation supported by no case law. In fact, the rulings on the status of a fetus two months into a pregnancy tend to go the other way.

However, here came the twist. Before the government made any further filing to seek a stay on the court’s order requiring them to allow an abortion, the ACLU moved up Jane Doe’s clinic appointment, changed it from a counseling appointment to an actual abortion, and Jane Doe got the abortion she wanted.

As mentioned above, Texas law does not allow nearly any abortions after 20 weeks of pregnancy, so the clock was ticking for Jane Doe. However, the government has taken affront to the ACLU’s actions. While the ACLU argues they were under no obligation to wait for the government to decide to act while Jane Doe ran out of time, the government has sought sanctions against the ACLU lawyers and argue that the lower court ruling should be vacated due to their actions.

The Case Moving Forward

Jane Doe got her abortion. In a statement afterword she said that nobody should be shamed for making the right decision for themselves. However, the case is not over. There has been no movement on the government’s requests as of now. What’s more, and most importantly, the central question of the case has not been thoroughly addressed.

These ruling imply that, at minimum, non-citizens have a right to the same protections of state abortion laws the same as citizens would have. However, the exact outlines of these rights have not been fully explored–the rulings in this case are rather brief. The ACLU will continue its battle against the policy of the Trump administration regarding illegal alien abortions. It seems quite likely that the question will eventually reach the Supreme Court as many are discussing the case as the largest abortion case since Trump took office. Jane Doe is also not the only plaintiff in the ACLU’s case, it was brought on behalf of all similarly situated people. This is not the last we will hear of this case or this issue. As of now, the trends say that non-citizens have the same rights to an abortion as anybody else.

Teenage Illegal Alien’s Right to an Abortion: Understanding Constitutional Rights of Non-Citizens

A 17-year old girl who realized she was pregnant while being held in an immigration detention center in has found herself at the center of an ongoing lawsuit over her right to get an abortion as an illegal immigrant. The girl is unnamed, known only as Jane Doe in all the documents associated with her. She was pregnant when she was originally caught, by herself, crossing the border in September. However, she did not realize she was pregnant until she was being held in a Texas shelter.

We’ve talked before about the shelters the government is required to provide to unaccompanied minors held for potential deportation, and the governments failures when it comes to providing basic necessities in these shelters. However, the government was denying something else this time–access to an abortion. Jane Doe had made it clear that she did not want to carry her pregnancy to term, but was repeatedly denied requests to leave the shelter to go to a clinic and get an abortion. In the meantime, she was instead taken from the shelter to–without her request–to attend religious counseling sessions to convince her not to get an abortion and to a clinic to get ultrasounds to show her sonograms of the fetus. As the timer for an abortion was obviously ticking down, eventually the ACLU was forced to bring a lawsuit on behalf to enforce her rights to an abortion.

This lawsuit is an interesting way to analyze a not well resolved issue of law: the rights of non-citizens to an abortion while in the U.S. However, it is worth first addressing the constitutional rights of non-citizens and illegal aliens in the U.S. Despite a bit of a misinformation campaign to the contrary, non-citizens inside the U.S. do have constitutional rights–end of story. But to explore both the lawsuit and the rights of non-citizens in general, we’re going to do a two-part article. This article will address non-citizen constitutional rights and the next one will deal with Jane Doe’s lawsuit itself.

abortionConstitutional Rights of Illegal Aliens

Right off the bat, illegal aliens have constitutional rights. Despite a great deal of information on the internet trumpeting that they do not, they do. Before you leave a comment on this article, they do. Seriously. Not only do they have constitutional rights, but the fact that they have these rights has been settled for over a century.  The issue has been settled since 1886.

The first cases addressing the issue all dealt with Chinese immigrants, primarily here as non-citizens working on the railroads. In three cases–in 1886, 1896, and 1903–it was firmly established that so long as you are within U.S. territory you have at least some constitutional rights regardless of your citizenship status or whether you are here legally or illegally. These non-citizens were ruled all the way back then to have 14th Amendment Equal Protection rights as well as the due process protections of the 5th and 6th Amendments.

The lynchpin of these rulings rested on the words of the Constitution of the United States: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” You notice that the first section of that quote says “citizen” while the rest of the sections simply say “person.” This is an important distinction; some rights are indeed generally reserved for citizens but due process and equal protection of law is guaranteed to any person in the United States. The Supreme Court has consistently stuck to this interpretation of the Constitution.

In 2001, they ruled once again that the 14th Amendment applies to all aliens–legal or illegal. Two decades earlier, they ruled against Texas preventing illegal alien children from attending grade school on Constitutional Equal Protection grounds. To make a complicated issue short, states cannot deny to anybody in their jurisdiction–including illegal aliens–equal protection under their laws.

The Supreme Court has, at least in the criminal context, also extended the protections of the First and Fourth Amendment. This includes rights such as search and seizure protections, a right against self incrimination, and political freedoms of speech and association.

Situations Where Non-Citizens Have Very Little Rights

While illegal aliens do have Constitutional rights, the federal government has an extremely broad discretion in how to treat these non-citizens–immigration proceedings. The Supreme Court has long established that immigration law is the realm of the fed and these proceeding are essentially an administrative matter above judicial review.

Immigration is treated as a national security and foreign policy matter–firmly in the realm of Congress. This means Congress can do things that might be constitutionally unacceptable if they were dealing with citizens; if only in the context of immigration and deportation proceedings. This power is further supported by the nature of immigration proceedings as administrative as opposed to criminal hearings–you don’t go to jail you just get deported.

When the Supreme Court upheld this in 1952, they did so in the context of Congress’ right to expel noncitizens who were former communists. However, they also made it clear what the message behind the ruling was, saying “In recognizing this power and this responsibility of Congress, one does not in the remotest degree align oneself with fears unworthy of the American spirit or with hostility to the bracing air of the free spirit…One merely recognizes that the place to resist unwise or cruel legislation touching aliens is the Congress, not this Court.”

What Do the Constitutional Rights of Non-Citizens Mean in the Abortion Context?

Non-citizens and illegal aliens have constitutional rights and, generally, enjoy protection of state law equal to that of a citizen. Depending on the state an illegal alien lives in, these rights are occasionally expanded by state law. While California likely offers the most additional protections, many states offer things such as in-state tuition, driver’s licenses, healthcare, and more. If somebody tells you non-citizens do not have constitutional rights or are not protected by the law, they are incorrect.

But before Jane Doe’s case there had never been a case specifically ruling on the constitutional rights of non-citizens to an abortion. Obviously there are a great deal of protections for citizen women seeking an abortion, although some might argue these protections are not enough. However, no court had ruled on the specific issue. Non-citizens enjoy equal protection of the law, but how does that apply when it comes to the law on abortion? Later this week we’ll look at Jane Doe’s case and find out.

Big Pharma Penalized, U.S. District Courts Rules in Favor of Maryland’s Price-Gouging Law

Pharmaceuticals have not been enjoying the greatest couple years when it comes to the court of public opinion. From Martin Shkreli’s infamous price jacking to recent price fixing convictions against Heritage Pharamaceuticals CEO Jeffrey Glazer, the hits have kept on coming as pharmaceutical scandals come out of the woodwork. Now, pharmaceutical companies have taken a hit in District Court as a judge has handed the first round victory to an anti-price gouging law out of Maryland targeting generic pharmaceuticals.

Despite the many instances of abuses on the part of pharmaceutical companies in the last few years, Congress has been slow to take any meaningful action on the issue. This has left the states to take action on their own and Maryland’s law–taking effect on October 1st just a few weeks back–is the first successful law of its kind.  However, pharmaceutical interests were very keen to see that was not the case. After the law was passed back in May, the Association for Accessible Medicines (AAM)–a group of generic pharmaceutical companies–quickly challenged the law as unconstitutional and sought a preliminary injunction to prevent the law from taking effect while their lawsuit was ongoing.

While the recent district court ruling shot down the potential of an injunction, the lawsuit is still far from over. Let’s take a look at the details of the statute out of Maryland, the AAM’s challenges to the law, the ruling of the court, and the trends of similar laws across the country.

big pharmaUnderstanding the Maryland’s Statute

The price gouging law, passed with a substantial bipartisan majority, is focused exclusively on off-patent and generic medications. It does not apply whatsoever to name brand drugs under patent protection.

It’s primary provision allows for Maryland to look into claims of unconscionable increases in the prices of generic medication. Where such an increase is found by the attorney general of Maryland, a fine of up to $10,000 can be levied against the manufacturer or distributor for each violation. The attorney general can also require companies to return money to consumers lost as a result of price gouging, order a stop to price gouging activities, an require a drug manufacturer to make a drug available to Medicaid participants at the pre-gouging price for up to a year.

In pursuing these investigations, the law allows the attorney general to require the accused company to produce records and justify their price changes. An opportunity to explain their increases is generally required under the law before levying fines. The information given in these explanations is held confidential by the attorney general where necessary.

The exact amount or percentage increase that would constitute “unconscionable” is not precisely defined in the law. However, “unconscionable” is far from a new legal concept and is often brought  up in the context of contract law as a situation where terms are so egregiously unjust in the favor of a party with greater bargaining power that a reasonable person would never agree to them. For example, where a life saving medicine is made incredibly expensive-beyond all market forces-but a purchaser has an option of either paying that price or suffering extreme consequences. This ambiguity when it came to the term unconscionable was central to AAM’s challenge to the law.

What are the AAM’s Arguments for Unconstitutionality?

AAM, as generic drug manufacturers, obviously didn’t care much for the law. Their challenges, however, were not frivolous attempts to slow down its progress. They made two primary arguments. First, the law overreached Maryland’s bounds by effecting potential pricing in states beyond just Maryland. Second, that the law itself was unconstitutionally vague.

The first argument hinged on a fairly uncommon argument in this day and age-the dormant commerce clause. The commerce clause is the power of the federal government to regulate commerce involving multiple states. However, in its current interpretation, the dormant commerce clause is a product of this power which prevents states from passing legislation which favors one state over the other. The dormant commerce clause also requires a balancing test where a law places a burden on commerce between states. However, it is exceedingly rare to see a law struck down on this basis in recent history. What’s more, merely burdening interstate commerce faces a much less rigorous test for constitutionality than favoring one state over another in a law.

The second argument, that the law was void for vagueness, pointed at the lack of concrete definition to the term “unconscionable” and said that the law was unconstitutional because manufacturers couldn’t know when they were violating it. In general, a law is unconstitutional were it doesn’t give the public notice of when they are violating it, impinging on their constitutional due process rights.

What was the District Court Ruling?

In deciding on the case, the District Court did several things which amount to handing a rousing victory to Maryland. First, it denied all injunctions and allowed the law to go forward as planned. Preliminary injunctions require, among other things, a showing that the plaintiff is particularly likely to succeed. The court just didn’t think that likelihood was here for AAM.

Second, the court outright dismissed AAM’s claims regarding the dormant commerce clause. They ruled that the law applies neutrally to all interstate commerce and thus the argument held no weight.

However, it wasn’t a clean sweep for Maryland here. The court didn’t rule in favor of AAM’s vagueness argument, but they did allow litigation on the issue to go forward. The judge felt the arguments were reasonable enough to bear fully exploring. Even then, the judge went out of his way in his ruling to note he didn’t think the arguments were necessarily winning ones.

This case is far from over. Even with the vagueness argument making its way through the ruling, AAM have already made it clear that they look to appeal and believe their case will succeed in the higher courts. For now though, it’s a victory for Maryland and the price gouging law will continue as planned.

Good News: Maryland’s Law is a Growing Trend

Maryland’s price gouging law may be the first to be passed, but it looks to be part of a concerted effort by the states to address this issue where the federal government has not. 36 states have introduced, if not passed, nearly 200 bills related to pharmaceutical pricing in the last year. Nevada passed a law in June, a month after Maryland, which requires drug manufacturers to release price and profits on insulin every year. Ohio has an upcoming vote on a law which would make it illegal for the state and its agents to buy drugs at a higher price than the U.S. Department of Veteran Affairs.

At least for Maryland’s law, AAM and a few others have criticized it for targeting generic drugs. They say that generic drugs are driving down medical costs and going them doesn’t make sense. However, this argument is a bit tone deaf in the of the off-patent Daraprim being the very drug at the center of Martin Shkreli’s infamous price hikes.

Regardless of how you feel about Maryland’s law, there’s little question that price gouging on necessary medications is an issue to be addressed. Living with an illness such as diabetes in difficult enough without wondering whether your insulin may suddenly skyrocket in price. For now, Maryland has won this round. However, this is a trend to keep an eye on–both out of the states and the federal government.

Can You Refuse To Vaccinate Your Child During a Divorce?

Rebecca Bredow was sentenced to a week in jail after she refused a court order to vaccinate her nine year old son. Bredow and her ex-husband had initially agreed to vaccinate their nine year old son, but Bredow later decided against it. Bredow argues that the parents had initially agreed not to give their child a vaccination and that it was her husband who changed his mind, in order to obtain leverage over their custody dispute. Their son will be in the care of Mr. Bredow until Ms. Bredow is released from jail.

Michigan allows parents of public school children to waive vaccination for their child, but the parents have to attend an education seminar on the benefits of vaccination first.  Health officials are worried that if children are not vaccinated, diseases such as measles will return. The reappearance of diseases that Americans have not been exposed to in a generation would result in a devastating outbreak. On the other hand, the parents want to waive vaccination are worried that the vaccines will give their children autism. However, scientific studies have largely debunked such claims.

vaccinateAlthough the medical benefits outweigh the falsely reported disadvantages of vaccinations, Bredow was not sentenced because of her opinions on vaccines; the legal facts determined her conviction.

Avoiding Confrontation with the Judge

The default in child custody is joint custody for both parents. People often mistake “joint custody” for “50/50%,” but family law judges will discourage parents from thinking about child custody in percentages. Children are not sacks of flour to be divided between disputing parties. Joint custody is the default child custody because the law presumes that it is in the best interests of the children to have both parents in their lives, not because it is fair to the parents. However, judges can deviate from the default joint custody if joint custody stops being in the best interests of the children.

Ms. Bredow made two mistakes that led to her week long jail sentence. First, she told the judge that it was against her beliefs to give her children vaccines. In a child custody case, the beliefs of the parents are not the deciding factor. In fact, asserting a personal belief in a custody battle can be harmful, since the judge might interpret that statement to mean that the parent is more concerned about his or her personal beliefs than the well-being of the children. In a child custody case, it is always preferable to relate the case back to the best interests of the children instead of arguing about other factors. Instead of saying that vaccines are against her beliefs, Bredow should have argued that the vaccines were potentially harmful to the children.

Second, Bredow publicly stated that she would refuse to obey the court order. There are many legal ways to challenge a court order. Bredow could have appealed the order. She could have filed a motion to reconsider the matter. Or Bredow could have chosen not to stipulate to an agreement in the first place. The worst thing to do though would be to agree to certain terms and then violate the court order to enforce the agreement that the parties made.

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.