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What Does Tax Reform Mean for Your Divorce?

Last Friday, the House passed its version of tax reform. The Tax Cuts and Jobs Act, or the “Cut Cut Cut Act”, as the President calls it (and grammatical nonsense, as my spell check sees it), proposes a variety of changes to the tax code. The most significant changes include the removal of the state income tax deduction, which would result in significant tax increases for Americans that live in states that have income taxes. However, the “Cut Cut Cut Act” has a small, but significant change for Americans contemplating divorce: a reversal in how alimony, also known as spousal support, is taxed.

Alimony is currently tax-deductible for the spouse who pays alimony and taxable for the spouse who receives alimony. Under the House’s tax plan, the roles would reverse. The alimony paying spouse would no longer be able to deduct the amount from his or her taxes, but the spouse receiving it would be able to keep alimony tax-free. Divorce decrees issued before the bill passes would not be affected, but divorces after the bill passes would be affected.

tax reformThe bill proposes the change as a form of divorce reform: “The provision would eliminate what is effectively a ‘divorce subsidy’ under current law, in that a divorced couple can often achieve a better tax result for payments between them than a married couple can.” Lawmakers believe that the change would generate an extra $8.3 billion in revenue over a decade, since the spouse paying alimony is typically the one earning a higher income.

At first glance, this seems like a different way of accomplishing the same goal, but with more tax revenue and an emphasis on helping the lower income spouse instead of the higher income one. With alimony payments tax deductible, we create a larger pool of money for the receiving spouse. The bill proposes to do the same in reverse, by permitting the receiving spouse to keep more money, instead of encouraging the paying spouse to make larger checks.

The reality in family courts is more complicated though. For the lower income spouse to receive alimony, a judge must either order the higher income spouse to pay spousal support, or the spouses must agree to an alimony arrangement. The former is more expensive, as it involves discovery and a trial by the family court judge. The old rules, with alimony payment tax deductible, encouraged higher income spouses to settle their divorce because paying alimony meant paying less taxes. With that incentive gone, higher income spouses will be less willing to settle their divorce.

Divorce Reform That Accomplishes Little Except Pain

Proponents of the bill might argue that discouraging divorce is a good thing. It is in the public interest that couples stay married rather than divorce. Married couples can more effectively pool their resources to raise their children than a separated couple can.

The problem with this argument is that there is a difference between discouraging divorce and discouraging divorce settlements.  This bill would only accomplish the latter. Couples breakup for a variety of reasons, including adultery, finances, and domestic abuse. Couples do not break up because they can pay less taxes as a divorced couple than as a married couple. Without addressing the underlying reasons for a divorce, couples will still get divorced. The difference is that now they have one more reason to go to the courtroom instead of the bargaining table. This bill will not reduce divorces; it will only make them more painful.

Attorney General Sessions Wants to Look at Your Phone

A backdoor from tech companies like Google and Apple allowing access to encrypted information stored on suspects devices has been something on the federal law enforcement wish list for some time. Similarly, there has been a push and pull between law and enforcement and tech companies over how much access these tech companies allow the government when it comes to the stored information of customers.

For instance, just a few years ago an email service known as Lavabit closed its entire business after refusing to comply with a court order allowing the U.S. government broad access to user emails. The exact breadth of the order was and is confidential. but it was enough that the company chose to close its doors rather than comply. The government has also turned to outside sources such as grey hat hackers to access password protected information on an iPhone. This led to an odd reversal of the usual dynamic where Apple was asking the FBI to reveal the security vulnerability in their own technology.

There is obviously a push and pull between the government’s interests in security and the public’s expectation to privacy in communications sent online and information stored through online services and on private phones, computers, or other devices. However, AG Jeff Sessions doesn’t think there’s much debate. Sessions has recently condemned tech companies for blocking access to encrypted data on mobile phones. He complains that tech companies have blocked FBI access to around 7,500 devices in the last year. He also says this is an act supporting terrorism.

Privacy vs. Security Under the Constitution

Regardless of how you feel about the balancing act between security and privacy, Sessions’ position is an immense oversimplification of an incredibly complex legal situation. Privacy rights come from many sources. These include state laws, statutes applying to specific situations and a more nebulous privacy right to privacy which the Supreme Court has ruled can be imputed from the combination First, Third, Fourth, Fifth, and Ninth Amendments–this is referred to in law as the penumbral rights of privacy and includes quite a few rights. Perhaps most relevant here is the Fourth Amendment right against unreasonable search and seizure.

The strength of this right generally hinges on a person’s reasonable expectation of privacy. It’s agreed that this is quite strong when you’re in your home, but the strength of your expectation of privacy varies drastically depending on the situation. How the right applies to data is a complicated situation–it’s generally agreed to apply to a locked phone as you’ve taken steps to ensure the privacy of the information on that phone–the same could generally be extended to a password protected computer or other device.

attorney general sessionsThis kind of shoots in the foot AG Session’s assertions that not allowing the government to bypass these protections is a legally reprehensible action akin to supporting terrorism. At the very least, a broad assertion that every situation where tech companies decline to provide access to a phone is a bit rich when that information is often constitutionally protected from search without a warrant.

But when it comes to seeking information from a third-party such as a tech company the protections on this information become even more complex. The Fourth Amendment generally considers you to have relinquished your expectation of privacy when you knowingly reveal that information to a third party. The key words here being “knowingly reveal.”

It’s undisputed that you entrust the security of an enormous amount of information to third parties–storing information on the cloud, using an email service provided by another, sending a message through a third-party’s service, basically any situation which involves storing information on a third-party server–an incredibly common situation in today’s digital age. Where this happens, no warrant is required to access your information–instead the government only requires a subpoena and prior notice.

As you can imagine, this has the potential to undermine your rights in an enormous amount of information. It is common for the government to seek information from the third parties you have “disclosed” the information to–often email providers, telecommunications companies and ISPs. However, given how little many people know about the exact details of how their data is handled or disclosed it’s often a bit of a stretch to describe using an email server of something similar as “knowingly disclosing.” What’s more, this exact issue is something the Congress has already addressed to some extent through legislature such as the Electronic Communications Privacy Act, the Federal Wiretap Act and especially the Stored Communication’s Act (SCA).

To discuss these in full is the work of a textbook. However, the SCA is likely the most relevant to AG Sessions’ assertions and the protections on at least some of the data you “share” by using common online tools such as email or messaging services. A locked phone is almost certainly off the table in most situations–breaking a customer’s encryption is not only undermining a business’s entire brand but doing so at the behest of the government without a warrant is arguably unconstitutional. The SCA makes it similarly illegal for companies storing your online communications to disclose your data to the government in many situations, the data you store on your phone may often not even be disclosed from a source beyond the phone itself. Failure to comply with the SCA can lead to serious legal repercussions for the tech company violating the SCA’s rules.

What is the Stored Communications Act?

So obviously if a company doesn’t keep your communications private and it happens often enough the company will lose any credibility with the public and lose business. It makes sense that tech companies are careful with choosing whether to share user information and when to not just roll over.  The SCA adds another consideration for these companies–providing a statutory source of protection like the protections of the Fourth Amendment for internet communications sought by the government and–in some cases–non-government entities. The SCA commonly applies to information such as emails and, after a 2010 court case–social media messages (but not open messages on a wall or comments unless the user is restrictive of access to these communications).

The SCA specifically protects the contents of digital communications stored on the internet as well as some appealingly non-content information which can be used to identify the contents of a communication such as subject headers. “Contents” is quite a broad legal concept and includes any information regarding the substance, import, or meaning of a communication. In general, however, non-content information can be disclosed without consent. Protected data cannot be shared with the government unless the person who made the communication consents to it.

If the information is less than 6 months (or more accurately 180 days) old the SCA applies the standards of a warrant before the government can access the information. After these 6 months are over, the standard of protection drops substantially and requires only a showing that the information could be relevant to an ongoing criminal proceeding. Routine business information such as location data–obviously not a communication–only requires a court order based on articulable facts for the government to demand it from a tech company.

The SCA makes it a crime to access without authorization or exceed authorization granted in accessing electronically stored communications. Where an ISP or company that stores your communications shares those communications in violation of the SCA they’re going to face serious repercussions. It can also create a civil action against both the company and the government for the person who made the improperly shared communication. It does not allow access to data stored outside the U.S. unless the user associated with the communications is a U.S. citizen.

Just over a month ago, Sessions’ own department strengthened the SCA. As written the SCA provides the ability for the government to impose gag orders on ISPs and tech companies–preventing them from even telling their user that they have disclosed their information. This is available with a government showing that such a notification would put a person or investigation at risk. The departments new approach limits the duration of these gag orders to one year and only if necessary. It also requires them to provide a more thorough explanation of why the gag order is necessary. The change is considered a response to a case related to the SCA brought by Microsoft last year. However, it certainly is odd to have the head of a department condemn protecting online privacy after his own department strengthened it barely a month ago.

Your Privacy is More Complicated Than AG Sessions Believes

Admittedly the SCA is not a perfect law, it doesn’t age with technology as well as it could and often relies on court rulings to update how it treats more modern technology–it isn’t even really settled how the timing of SCA protections apply if you don’t open an email.  It doesn’t cover nearly as much as it could, and potentially as much as it should. Congress has not updated the law since it was originally passed over 30 years ago. However, it is an example of how the law values tech companies protecting your private data. To condemn tech companies for following the law is an unfortunate position for the government’s top lawyer.

The SCA and the Fourth Amendment are far from the only things limiting companies from disclosing user information or allowing access to an encrypted phone. Beyond the condemnation of the public if a company doesn’t keep your data safe and private, a company must follow its own privacy policies. Most privacy policies include carve outs for complying with court orders and it is far from uncommon to include provisions which state that a company will fully cooperate with any or some types of government investigation. However, this is far from a blanket truth. Where these carve outs don’t exist the release of information protected under a privacy policy would lead a company to face serious issues from the FTC.

While security and the investigations of the FBI are incredibly important, it’s far from unreasonable to expect the information you store online to have some privacy protections. In today’s world the sheer amount of information stored in this manner is mind-boggling. It is outright dangerous to the public to demand tech companies to relax their security protocols and Sessions demanding blanket access to the government is very nearly an irresponsible suggestion. Tech companies should be lauded, not condemned, for rigorously protecting the privacy rights of their customers.

Understanding the Sexual Assault Allegations that Rock Capitol Hill

The latter half of 2017 has been a tsunami of sexual assault allegations against prominent politicians and Hollywood men. In most states, sexual assault is unconsented intention sexual contact for sexual gratification. These allegations have dire political consequences and potential legal consequences. Al Franken may soon be under Congressional ethics investigation, Roy Moore is taking a beating in the polls of his Senate race, and Trump is still President.

However, not all sexual assault allegations are created equal. But to prove a crime, prosecutors must show that the defendant committed the act with a criminal intent. For example, if the defendant hits another person with his car because that person owed him money, then the defendant is guilty of vehicular assault.  If the defendant hit the victim by accident, then there would be no intent and thus no crime. If the defendant didn’t hit the victim, then there would no act and thus no crime (with exceptions for attempted crimes).

Regardless of the political costs, the legal fallout will be different for each man based on the evidence and the potential criminal charges each man might face.

Roy Moore

Roy Moore faces the most significant potential criminal charges: sexual abuse with a minor. Under Alabama state law, 1st degree sexual abuse is a Class C felony. A conviction can result in up to ten years in prison, a $15,000 fine, and registration as a sex offender. Although the statute of limitations for crimes is usually five years in Alabama, child sexual abuse is one of the crimes that is exempt from the statute of limitations.

capitol hillFortunately for Moore, the evidence against him is the weakest of the three cases. Other than the accusers’ testimony, the only evidence that exists is circumstantial evidence. The yearbook proves that Moore was lying about not knowing the alleged victim and the ban from the mall collaborates Moore’s admittance that he liked to date girls who were barely legal. However, neither proves that Moore had sexual contact with a 14-year-old girl or attempted to rape a 16-year-old. The yearbook suggests that Moore thought of the 16-year-old in a sexual manner, but it’s unknown whether Moore tried anything beyond being a creepy and egomaniac Assistant District Attorney.

Al Franken

Senator Franken could be indicted with fifth degree criminal sexual conduct, whereby he engaged in nonconsensual sexual contact, which is a gross misdemeanor. It would not be a higher degree because there are no allegations of penetration and there was no reasonable fear of imminent physical harm, since there were other people around and the accuser was asleep. A conviction would lead to one year in prison and a $3,000 fine for first time offenders.

Franken’s case involves strong evidence outside the accuser’s testimony: a photograph where Franken is grabbing or attempting to grab the accuser’s breasts. Going back to the elements of a crime, the photograph is evidence of a sexual act, though no intent is established. The fact that the accuser was wearing a bullet proof vest is of no significance. The photographer, Franken’s brother, testifies that the photograph was taken in jest and that the accuser was actually awake and in on the joke.

Franken’s best defense, if the accuser’s testimony is discounted, is that he did not touch her for sexual gratification. Most states define sexual assault as unconsented intention sexual contact for sexual gratification. It is legally possible to intentionally touch someone’s sexual parts without consent if the purpose was not for sexual gratification.

When might that happen? If a woman fainted and a man was trying to resuscitate her by performing CPR, he would have to touch her mouth and chest. CPR would require intentional non-consented touching of otherwise private body parts, but most states would not prosecute for sexual assault because the CPR was done for non-sexual purposes.

The example is extreme, but if the sexual contact was not for sex, there cannot be sexual assault. If Franken grabbed the accuser’s breasts while she was asleep as a joke, there would no sexual purpose and he would not have committed sexual assault (though assault and battery would still be an issue).

Obviously, we cannot excuse every allegation of sexual assault as a joke. In Franken’s case though, there are facts that do support the argument. He had a long career as a comedian prior to becoming a senator and these allegations occurred during a Saturday Night Live skit. I am not excusing his conduct; his behavior was appalling and he should resign his Senate seat. However, there may not be enough evidence to convict Franken of a criminal offense.

Donald Trump

The allegations against the 45th President are well documented now. Trump is the opposite of Franken in many respects. The now infamous “pussy grabber” Hollywood Access video shows that Trump has criminal intentions, even if there is no evidence of sexual acts other than the testimony of the women against him (in contrast with the photograph of Franken’s act, but without an intent to prove it was sexual).

The White House is insistent that Franken should be investigated, but Trump is absolved because Franken has apologized while Trump (and Moore) have denied all allegations. There’s two things wrong with this logic. First, denial does not mean one is innocent. There are thousands of prisoners who have pleaded not guilty and have never confessed to a crime. Second, we should have higher standards for our elected representatives.

We might assume that men are innocent until proven guilty in a court of law, but that is not the standard for employment. If a hiring manager at a McDonalds or Walmart had any doubts about whether an employee had sexually abused or harassed women in the workplace, that employee would be terminated. Why do we have lower standards for Senators and the President of the United States than cashiers at retail stores or fast food restaurants?  Men like Trump, Moore, and Franken have no business representing us and they should all resign.

What You Need to Know About the Harvey Weinstein Lawsuits

The accusations of sex crimes committed by Harvey Weinstein have come thick and fast over the last month. As of now, over 80 women have come forward accusing Weinstein of every degree of heinous sex crime imaginable. Some of these accusations are over decades old events while others are quite recent. As they have come to light, they have opened the floodgates for an enormous number of accusations revealing a pervasive atmosphere of sexual assault in Hollywood as more and more actors are called out for previous sexual assaults or for being complicit in such acts and doing nothing.

But, no accusations have matched the sheer numbers and disturbingly normalized pattern of what Weinstein is alleged to have done. An enormous number of women, Gwyneth Paltrow, Rose McGowan, Lucia Stoller, Asia Argento, Ashley Judd, and many more, have accused Weinstein of sexual crimes ranging from sexual assault to rape. The accusations all follow a similar pattern, Weinstein invited an actress or aspiring actress to a hotel room or similar isolated spot on the pretense of speaking about their career and then sexually propositioned them–often not taking no for an answer and threatening their career if they did not comply. Many of these women have cited Weinstein destroying careers as their reason for not immediately coming forward; others came forward but were not believed, berated, and no action was taken.

Weinstein allegedly used his enormous resources to hire people to conceal the acts, allegedly with the help of his company and Miramax. The most recent lawsuit against him includes allegations of Weinstein hiring lawyers, reporters, private investigators and more–often to the tune of over $100,000–to cover his tracks. The efforts were apparently quite in depth, false businesses and false names created to mislead victims into believing they were investing in their productions while they were gathering information and attempting to prevent publication of details regarding Weinstein’s attacks. An enormous amount of effort was put into discrediting victims.

weinsteinWhile everything here is still allegations, there has been quite a bit of information released to support the notion that these attacks were a bit of an open secret in Hollywood. Weinstein himself admitted in a recorded NYPD sting operation in 2015 that he had groped a model. He described the behavior as something he is “used to.”

These allegations have sparked what will hopefully be a continuing change in the way sexual assault is treated in Hollywood. However, they have also given rise to a web of lawsuits brought both against and by Harvey Weinstein himself. Let’s look at some of these lawsuits including a recent class action against Weinstein, Miramax and The Weinstein Company, a recent lawsuit brought against The Weinstein Company by Weinstein himself, and the criminal investigations related to Weinstein.

Class Action Alleging Sexual Assault and More

Perhaps the largest suit against Harvey Weinstein was brought just a few weeks back. The suit is brought on behalf of an unnamed actress–going only by Jane Doe in the lawsuit–alleging that Weinstein acted against her career after she refused to show him her breasts while alone in a hotel room. The 59-page complaint also includes other similarly situated persons in the suit.

The suit alleges charges against Weinstein, and both The Weinstein Company and Miramax as knowing and complicit facilitators of Weinstein’s actions. There have been many instances over the year of interviews and memos indicating at least a passing knowledge of Weinstein’s sexual assaults Some of the women assaulted were brought to isolated meetings with Weinstein as part of agendas provided to them as part of Miramax productions. Reports of Miramax contracts with Weinstein as recently as 2015 allegedly include specific terms that allow Weinstein to avoid internal punishment for treating somebody improperly under Miramax Code of Conduct if he pays all damages and fines out of pocket–along with liquidated damages which would increase for every instance. The lawsuit also argues that many of the attacks were done while Weinstein was acting within the scope of his duties for Miramax and the Weinstein Company.

The specific acts taken against Jane Doe in the case involve Weinstein demanding to see her breasts, then telling her that refusal would end her career. He then allegedly locked her in a dark stairwell where she was eventually released by a janitor.

The charges of the suit include 18 U.S.C. § 1961 RICO Act charges, the same types of charges originally created to combat mafia-style organized crime. The lawsuit basically alleges a concerted group effort to tamper with and intimidate victims and witnesses. They also allege a conspiracy to do the same, negligent supervision of Weinstein by Miramax and The Weinstein Company, civil battery charges, assault charges, and both negligent and intentional infliction of emotional distress.

While many of the charges would normally be barred by the statute of limitations for these charges, the complaint argues the limitations do not apply because the full nature of the conspiracy between Weinstein, The Weinstein Company and Miramax was not known until the expose on the issue published by the New York Times on October 5th, 2017.

Other Suits Related to Weinstein’s Actions

This class action is just one of many brought against Weinstein, Miramax and The Weinstein Company. For instance, actress Dominique Huett has brought a $5M negligence suit against the Weinstein Company. Just recently, an anonymous Los Angeles actress sued over a rape as recent as just last year. These are just the tip of the iceberg, and we can likely anticipate much more in the future.

Weinstein Suing Weinstein Company

Weinstein has been doing some suing of his own–bringing a lawsuit against his own former company The Weinstein Company. Weinstein himself has been forced out of his company in light of the accusations against him. After this, Weinstein has sued his former company for under two separate causes of action–first for wrongful termination and second over the release of emails and documents to him.

The wrongful termination lawsuit is in arbitration currently and the exact details of the accusations are not fully public. The lawsuit over release of documents, however, has seen much more movement and a Delaware judge has already set a trial for January on the issue.

The lawsuit boils down to Weinstein alleging that the company is refusing to turn over emails and other documents that he claims will prove he is innocent of the accusations leveled against him.

A Delaware judge set a January trial for Harvey Weinstein’s effort to get the film production company he co-founded to turn over emails and other documents that he says will exonerate him of–or at least help defend him against–the accusations of sexual harassment. Weinstein apparently intends to produce emails which, according to sources associated with Weinstein, include evidence that accusers “enticed” him or thanked him for what happened. It’s unclear whether any of this evidence exists and seems rather unlikely it would help him in the court of public opinion at this point. Weinstein’s suit has also acknowledged that the email may also show some level of complicity on the part of The Weinstein Company and Miramax.

The Weinstein Company has responded with a request to dismiss the case outright in a recent answer to Weinstein’s complaint.

Criminal Action Against Weinstein

The action against Weinstein are not all civil actions. Both Los Angeles and New York have ongoing investigations into the actions of Harvey Weinstein–quite rightly considering the scope and seriousness of what he is accused of.

In Manhattan, the district attorney’s office has been investigating the accusations of actress Pas de la Huerta who has said that Weinstein raped her twice in her own apartment in 2010. The investigations are still ongoing, so details are still a bit sparse. However, you can expect to hear more on these criminal charges soon.

The Weinstein Company and Weinstein’s Response to the Allegations

Weinstein himself has consistently responded to all allegations with blanket denials of everything these 84 women have charged him with. The Weinstein Company has created as much distance between themselves and Harvey Weinstein as possible and, while there is certainly evidence suggesting they knew about Weinstein’s actions, the company has denied all knowledge and involvement. It’s also worth noting that many of the 80 plus claims here are too old to see litigation in court–if not too old to reach the court of public opinion.

The Weinstein Company has hired a couple of law firms to prepare themselves for potential bankruptcy proceedings. This would limit their financial liability moving forward.

If, or more likely once, criminal charges are brought against Weinstein it may impact the civil actions against him. Just as Bill Cosby asserted due process rights to put civil lawsuits against him on hold during his criminal proceedings, Weinstein may do the same. The argument being that the civil proceedings may prejudice a criminal jury.

The allegations against Weinstein have shone the light on a horrifying aspect of our society and opened the door for an enormous number of similar allegations. Regardless of the outcome of the cases against him, this is an important step. However, it’s hard to imagine the lawsuits discussed here are anything but the tip of the iceberg for Weinstein. We’ll see more action against him in the future, likely the near future.

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.