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A Loss in the Courts Won’t Stop Missouri’s Anti-Abortion Wave

Mother Jones

For decades, Missouri has embarked on a quest to eliminate abortion access. Earlier this year, state legislators filed some 14 anti-abortion proposals before the start of the session, making it a prominent example of emboldened efforts on the state level in the Trump era. Those measures were dealt a blow last week when a federal judge suspended two longstanding abortion restrictions in the state, but with the GOP controlling every level of the state’s government, state lawmakers are undeterred in their efforts to restrict abortion access.

Today, a Planned Parenthood clinic in St. Louis is the state’s sole abortion provider licensed to serve approximately 1.2 million women of reproductive age, many of whom would face a 370 mile drive to access services, a process further protracted by a mandatory 72-hour waiting period. “People are driving hours to St. Louis, or they’re crossing over the state line into Kansas or other states in order to access services,” says Laura McQuade, the President and CEO of Comprehensive Health of Planned Parenthood Great Plains, one of the Planned Parenthood affiliates that filed a lawsuit last year challenging the Missouri restrictions.

As a leader in restricting abortion access, Missouri passed laws more than a decade ago that required doctors who perform abortions to have admitting privileges at local hospitals and abortion clinics to meet the same structural requirements as ambulatory surgical centers. These laws were subsequently also passed in Texas, where they were challenged and finally struck down by the Supreme Court in a 5-3 ruling in Whole Woman’s Health v. Hellerstedt in 2016.

Last week, in response to a challenge filed last fall by two Planned Parenthood affiliates with Missouri clinics, US District Court Judge Howard Sachs agreed to enjoin Missouri’s version of the restrictions. Sachs first announced his decision in an April 3 memo sent to the parties involved in the case. In his decision, Sachs noted that the restrictions had negatively affected women in the state and failed to comply with the Supreme Court’s ruling. “The abortion rights of Missouri women, guaranteed by constitutional rulings, are being denied on a daily basis, in irreparable fashion,” he said. “The public interest clearly favors prompt relief.” The restrictions will be halted while the effort to permanently strike down the laws moves through the courts.

Sachs’ ruling could have an immediate impact on abortion access in the state. Shortly after the decision was announced, the Missouri Planned Parenthood affiliates released a joint statement confirming their desire to increase the number of local abortion providers by expanding services to four additional Planned Parenthood locations. But Missouri Attorney General Josh Hawley has promised to appeal the decision, saying that it was “wrong” with the dire consequence that laws that “protect the health and safety of women who seek to obtain an abortion” can no longer be enforced.

Last week’s ruling, however, is unlikely to deter state legislators from pursuing further abortion restrictions. Around the same time that Sachs issued the April 3 memo announcing his intent to grant the injunction, two Republican state Senators, frustrated that they were unable to block a St. Louis nondiscrimination ordinance protecting women that are pregnant, use birth control, or have had an abortion, took time during a discussion of tax hikes benefiting the state zoo to joke that women should go to the St. Louis Zoo for abortions, suggesting that it was “safer” and better regulated than the state’s lone abortion provider.

Meanwhile, shortly after Republicans in Congress moved to defund Planned Parenthood, state Republican Rep. Robert Ross proposed an amendment to House Bill 11—an appropriations bill for the Missouri Department of Social Services—that would allow the state to prevent “abortion services” providers from receiving state family planning funding. This could potentially include any group that provides even abortion referrals upon request. Allison Dreith, the executive director of NARAL Pro-Choice Missouri characterized the amended bill as having the potential to create “a public health crisis in our state, if family planning clinics, hospitals, and Planned Parenthood are defunded from Medicaid reimbursement.” The measure passed the House on a 107-39 vote and is now with the Senate.

Missouri lawmakers have faced some unintended consequences in their zeal to cut back on family planning services. In 2016, the state rejected the federal family planning funding it had received through Extended Women’s Health Services, a Medicaid program for low-income women funded by both the state and federal governments. Federal law already prevents Medicaid from reimbursing providers for the costs of most abortions, but Missouri legislators hoped to go further by completely cutting off funding to groups like Planned Parenthood by rejecting some $8.3 million dollars in federal funds, opting to create a state-funded program that would no longer have to abide by federal rules mandating that patients have the ability to choose their health care provider.

In the months leading up to the measure taking effect, Missouri has moved to block all abortion providers, including hospitals, from receiving family planning funding. But to the consternation of Missouri conservatives, many Planned Parenthood clinics in the state remained eligible for the program because they are not permitted to provide abortions. “Despite that being a simple amendment last year, apparently the Department of Social Services was confused,” Ross said when discussing his proposed amendment earlier this month, according to reports from the Missouri House of Representatives newsroom. Ross’ HB 11 amendment would change things by ensuring that even those who provide information about or referrals for abortions are excluded from the funding program.

“They have defined ‘abortion services’ so broadly that it is going to basically decimate the entire family planning network across the state of Missouri,” says Michelle Trupiano, the executive director of the Missouri Family Health Council, which allocates funding to 71 clinics in the state under the federal government’s Title X family planning program.

Trupiano notes that under the conditions of Title X, many of the state’s family planning providers are required to offer abortion referrals upon request, a mandate that could open them up to losing funding should HB 11 be adopted. “There wouldn’t be a single provider that could participate in the program,” she adds. With less than a month remaining in Missouri’s legislative session, advocates have begun lobbying lawmakers in hopes of defeating the amendment.

But given the history, advocates say, some lawmakers in Missouri will do anything to restrict abortion, even if it means an overall reduction in access for women to health care options in the process. “Responsible legislators want to move forward to other issues,” McQuade says. “But this is what Missouri is choosing to spend its time on right now. It’s deeply disheartening.”

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A Loss in the Courts Won’t Stop Missouri’s Anti-Abortion Wave

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Gerrymandering Is Headed Back to the Supreme Court

Mother Jones

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The New York Times reports that gerrymandering is headed to the Supreme Court again:

A bipartisan group of voting rights advocates says the lower house of the Wisconsin Legislature, the State Assembly, was gerrymandered by its Republican majority before the 2012 election — so artfully, in fact, that Democrats won a third fewer Assembly seats than Republicans despite prevailing in the popular vote. In November, in a 2-to-1 ruling, a panel of federal judges agreed.

….In Supreme Court cases in 1986, 2004 and 2006, justices variously called partisan gerrymanders illegitimate, seriously harmful, incompatible with democratic principles and “manipulation of the electorate.” But they have never struck one down….One participant in the 2004 decision, Justice Anthony M. Kennedy, may prove the fulcrum in the court’s deliberations….“The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself,” he wrote then.

At a time of soaring concern over hyperpartisanship, those words could resonate. That sentence “is the most important line” in the court’s decision, said Edward B. Foley, director of the Election Law Project at the Ohio State University Moritz College of Law. “He’s going to look at what’s going on in North Carolina as the complete absence of that. I think that helps the plaintiffs in any of these cases.”

Today’s gerrymandering is not your grandfather’s gerrymandering. It’s a practice that’s been around for a long time, but back when it depended on humans it was necessarily limited. There were a few legislative geniuses who could wreak real havoc, and anyone could gerrymander well enough to gain a seat or two. But computers have changed the game fundamentally. Every legislature is now a supergenius at gerrymandering, which is why estimates of the number of congressional seats attributable to gerrymandering have been going up for years.

There’s a point, I think, where the Supreme Court has to recognize that quantitative changes over time have finally produced a qualitative change. Modern gerrymandering is just too good. The silver lining here is that if computers can revolutionize gerrymandering, they also hold out hope of revolutionizing the detection of gerrymandering. You can no longer say that there’s no possible standard for ruling that a particular district map is unconstitutional. In fact, there are several plausible candidates. Hopefully the court will finally recognize this.

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Gerrymandering Is Headed Back to the Supreme Court

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The Not-So-Crazy Plan to Get Trump’s Taxes

Mother Jones

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Unless you filed for an extension, your federal tax returns are due Tuesday night before midnight. Traditionally, it’s around this time that presidents make their own tax returns public as well—in part because presidents have a vested interest in maximizing federal revenue by encouraging people to file their taxes. On April 15, 2016, for example, President Barack Obama posted his 1040 on WhiteHouse.gov, revealing that he and Michelle Obama had earned $436,065 the previous year and had paid $81,472 in taxes. We also learned that they gave $64,066 to various charities, including Habitat for Humanity, the Beau Biden Foundation, and Mujeres Latinas en Accion.

President Donald Trump, however, appears set to end this tradition. He refused to produce his tax returns during the presidential campaign, claiming that he couldn’t do so because he was under IRS audit. Trump has never produced a letter from the IRS that would confirm the audit. It wouldn’t matter anyway—an audit doesn’t preclude anyone from releasing their tax returns. Press secretary Sean Spicer told reporters at a briefing on Monday that Trump was already under audit for 2016. Fun fact: Presidents are audited by the IRS each year; it’s the law.

Maybe there’s another way, though. Lawmakers in more than two dozen states—mostly Democrats, but a few Republicans—have introduced bills intended to compel Trump to do what mass demonstrations and public shaming have thus far failed to accomplish. As written, the bills would require all candidates for president to release income tax returns in order to appear on that state’s ballot. New Jersey’s bill passed both houses of the state Legislature last month, although Republican Gov. Chris Christie is unlikely to sign it into law. The effort bears some similarity to a push by conservative lawmakers ahead of the 2012 election to force Obama to release his long-form birth certificate in order to appear on the ballot. (Obama had already taken the unusual step of releasing his short-form birth certificate, but many conservatives, including Trump, continued to insist that he may not have been born in the United States and might not, therefore, have been a legitimately elected president.)

All well and good—but would a tax return requirement be constitutional? A trio of experts—Harvard law professor Laurence Tribe; Norm Eisen, chairman of Citizens for Responsibility and Ethics in Washington; and Richard Painter, the former ethics chief in George W. Bush’s White House and a CREW vice chair—penned an op-ed for CNN asserting that these bills would be legal. Although courts have held that states cannot add additional “qualifications” to races for federal office—for instance, a state can not impose its own term limits for senators—they do grant states some latitude in deciding which candidates’ names are printed on the ballot.

They write:

Unlike prohibited qualifications, these laws do not impose substantive requirements on candidates beyond those imposed by the Constitution itself; that is, these laws do not limit which candidates may run for office based on any particular information in their tax return. Thus, they do not create an insurmountable barrier in advance to any set of individuals otherwise qualified under Article II of our Constitution. Instead, these laws require federally qualified candidates to comply with a relatively minor process of tax disclosure.

In other words, mandating tax returns might be fine; any conditions about what those tax returns actually say would be too onerous.

But the constitutional question is hardly settled. Pepperdine University law professor Derek Muller wrote in the New York Times that such measures were “probably unconstitutional,” arguing that “the Supreme Court has repeatedly held that states can’t use the ballot as a political weapon.” And in some cases, as with the previous demands for a birth certificate, legislators aren’t even hiding their intentions. New York’s version of the tax-returns requirement is called the Tax Returns Uniformly Made Public Act—or TRUMP Act, for short.

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The Not-So-Crazy Plan to Get Trump’s Taxes

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It’s Easter in Mar-a-Lago

Mother Jones

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What’s on our president’s mind on this lovely Easter morning? Let’s check in:

This came after a series of tweets griping about folks who still want to see his tax returns; the paid agitators behind yesterday’s rallies; and China not being a currency manipulator as long as they play ball on North Korea. You can almost feel the morning star of our Savior’s resurrection infusing Trump’s heart with warmth and gladness, can’t you?

Speaking of which, I gather that there was no sunrise service on Trump’s schedule today. That’s OK with me—I slept in too—but it’s kind of funny, especially since Politico informs us that Trump is becoming more Godly now that he’s in the Oval Office:

President Donald Trump has increasingly infused references to God into his prepared remarks — calling on God to bless all the world after launching strikes in Syria, asking God to bless the newest Supreme Court Justice, invoking the Lord to argue in favor of a war on opioids.

He’s also taken other steps to further cultivate a Christian right that helped elect him, granting new levels of access to Christian media and pushing socially conservative positions that don’t appear to come naturally to him.

Apparently Trump isn’t even a Christmas-and-Easter Christian, but he’s still “cultivating” the Christian right. He may be an atheist in practice—none of us actually believe his recent nonsense about praying more often, do we?—but that won’t stop the Christian right from embracing Trump as long as he’s against abortion and Democrats and says the word “God” once in a while. With practice, maybe he’ll even be able to toss out the occasional Biblical allusion.

It probably sounds like there’s not much warmth in my heart either this morning, and obviously I need to work on that when it comes to Trump. After all, even here in the land of palm trees, light arises in the darkness for us upright folks.

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It’s Easter in Mar-a-Lago

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This Is What Democrats Have to Gain From Filibustering Gorsuch

Mother Jones

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Speaking to a gathering of Democratic donors in late March, Sen. Claire McCaskill (D-Mo.) gamed out the perils of filibustering Neil Gorsuch, President Donald Trump’s nominee to the US Supreme Court, whose confirmation is scheduled for a Senate vote on Thursday afternoon. McCaskill imagined a scenario—one that is barreling toward becoming reality—in which Republicans remove the 60-vote threshold necessary to confirm nominees to the Supreme Court.

“They confirm either Gorsuch or they confirm the one after Gorsuch,” she explained, according to audio that was later leaked to the Kansas City Star “Then, God forbid, Ruth Bader Ginsburg dies, or Anthony Kennedy retires or Stephen Breyer has a stroke or is no longer able to serve. Then we’re not talking about Scalia for Scalia, which is what Gorsuch is, we’re talking about Scalia for somebody on the court who shares our values. And then all of a sudden the things I fought for with scars on my back to show for it in this state are in jeopardy.”

McCaskill’s warning echoes the case made by several academics in the past few days: It’s better to save the filibuster for another day when, perhaps, moderate Republicans would help Democrats keep the arcane Senate rule that makes it possible for a minority party to prevent a vote from occurring if it doesn’t get the support of 60 members of the chamber, effectively killing a bill or a Supreme Court nomination. But last Friday, McCaskill, a vulnerable Democrat up for reelection next year in a state Trump won by double digits, announced she would join her Democratic colleagues in filibustering Gorsuch. Her decision, to join every Senate Democrat but three to oppose Gorsuch and dare Republicans to end the filibuster, raises a puzzling question: Given the possibly terrifying likelihood that awaits progressives if they lose the filibuster—not just with Trump’s Supreme Court nominee this time, but also with future fights—what’s the upside?

Some fear there is none, and that the Democratic Party is rushing toward a decision it will likely regret, at the behest of the party’s progressive and increasingly powerful base. A filibuster “prevents a revolt by the base—it’s the base here that’s not being smart,” said a political consultant who asked not to be named because of a client list that includes Democratic senators. The small donor base and activist core of the party “have boxed these folks in to a position that is not the wisest one.”

The pressure began in early March, when progressive groups issued a warning to Senate Democrats for being what they saw as too soft on Gorsuch. “We need you to do better,” a coalition led by NARAL Pro-Choice America wrote in a letter. Indivisible, a new grassroots group that helps people organize locally and contact their representatives, drafted a script for activists to use when calling members of Congress. And the Progressive Campaign Change Committee has been vigilant in going after senators who were slow to get on the filibuster train. An email sent out to the group’s listserv in Vermont, for example, attacked Sen. Patrick Leahy (D-Vt.), a stalwart liberal, for saying he’s “not inclined to filibuster.” The email urged constituents to call Leahy and get him to commit to filibustering. “Voting against the filibuster is the same as voting for Gorsuch,” the email said.

Senate Minority Leader Chuck Schumer (D-N.Y.), who’s best known as a dealmaker rather than as a progressive stalwart, “is not really in a position to go to these people and say, ‘Hey, this isn’t really this important, this other one is,’ because that triggers the very response he’s trying to avoid,” the consultant explained. As with virtually every other Democrat, Schumer does not want to invite the anger of the base by stopping a filibuster. The decision to oppose Gorsuch, and to let Republicans put an end to the filibuster entirely, the consultant said, is more about survival today than long-term planning.

Tad Devine, who served as chief strategist on Bernie Sanders insurgent presidential campaign, considers the base to be the major reason that Democrats should filibuster. To avoid it “would have been a signal that Democrats were willing to engage in business as usual and not willing to mount principled opposition to Trump” and his nominee, he explained.

Devine is looking forward to the midterm elections in 2018. In the past two midterm cycles, Democrats have struggled to turn out their voters and Republicans have won huge victories, taking over dozens of state capitals and governors’ mansions, even in blue states. If Democrats didn’t take up this fight, he said, they would demoralize their base and risk losing the momentum they have today. “We don’t want people who are now coming into the political process, engaging so strongly in support of the Democrats and their opposition to Trump, to be disheartened,” he said. “For Democrats not to do this would have been a potentially catastrophic mistake.”

Beyond the issue of the base, some progressives see more potential upsides in triggering the nuclear option. “This is an exercise of a raw political power grab, and the hope is that the American people see that for what it is in coming elections,” said Neil Sroka, communications director for Democracy for America, a progressive group that is supportive of Democrats’ current strategy of filibustering Gorsuch. This is a position echoed by Schumer himself. When asked at a press conference Tuesday what would happen if Republicans ended the filibuster for Supreme Court nominees, he responded, “They will lose if they do it.” That’s because the voters will see that McConnell “will do anything to get his way,” and Republicans will not be seen as acting in a reasonable or bipartisan fashion. In the long term, Sroka believes progressives will be better off without the filibuster hindering their own nominees when, perhaps after the 2020 elections, Democrats are in a position to pick the next nominee.

All these potential upsides are worth the risk of losing the filibuster, because McCaskill’s hope that Republicans won’t remove the filibuster in a future Supreme Court battle is a fantasy. “There is a fiction that the filibuster isn’t already dead,” says Sroka. “Any vote that Mitch McConnell and Senate Republicans take is really just the icing on the cake—this thing has been cooked since Senate Republicans defied any sense of decorum in their treatment of Barack Obama.”

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This Is What Democrats Have to Gain From Filibustering Gorsuch

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