Tag Archives: court

A judge rules that rushing approval for the Dakota Access Pipeline violated the law.

U.S. District Court Judge James Boasberg issued a ruling Wednesday that deemed the previous environmental review process inadequate. His decision comes in response to a legal challenge filed by Standing Rock Sioux in February, after President Trump greenlit the pipeline shortly after his inauguration.

Specifically, the judge said the Army Corps of Engineers, which must approve pipelines that cross water, “did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.” According to Jan Hasselman, the Earthjustice attorney representing the tribe, the ruling represents possibly the first time that a federal judge has dinged the Army Corps for not considering environmental justice concerns.

The Army Corps must now do additional review. Hasselman is unsure what form that will take. “Do they just try to paper this over with a supplemental or revised environmental assessment, which is likely to lead to more litigation?” he says. “Or do they go back to the environmental impact statement process?”

The tribe has argued for months that the pipeline would endanger their drinking water and ancestral lands. Since oil began flowing in March, the pipeline has already leaked several times. Oil will continue flowing for now, but Standing Rock Sioux Chair Dave Archambault II said the tribe “will ask the Court to shut down the pipeline operations immediately” while it undergoes further environmental review. A ruling could come on that demand in as soon as six weeks.

Related: Read Grist’s investigation of the paramilitary tactics used to track and target pipeline opponents.

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A judge rules that rushing approval for the Dakota Access Pipeline violated the law.

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Trump Wants to Let Your Boss Take Away Your Birth Control

Mother Jones

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The Trump administration is considering a broad exemption to Obamacare’s mandate on contraceptive coverage, according to a leaked draft of the proposed rule published by Vox on Wednesday.

Since 2011, the Obamacare provision has required that most employers provide insurance that covers birth control, without any cost to the patient. The rule has been the target of a number of lawsuits by religious employers who felt that the requirement violated their religious beliefs. Showing sensitivity to such concerns, in 2014 the Supreme Court ruled in Burwell v. Hobby Lobby that some religious employers could opt out of the coverage. But the court required them to file paperwork indicating their objection, in turn triggering separate contraceptive coverage for employees provided directly by the insurance company. That ruling, though, didn’t settle the issue for religious groups. In a follow-up 2016 Supreme Court case, Zubik v. Burwell, a number of religious organizations said that even this accommodation required them to violate their beliefs, as the paperwork made them complicit in providing birth control coverage. The Supreme Court sent the case down to the lower courts, where it has still not been resolved.

Now, the Trump administration seems ready to extend the birth control exemption beyond just religious employers. According to the leaked draft, dated May 23, the new rule would allow virtually any organization to opt out of the mandate if they feel contraception coverage violates “their religious beliefs and moral convictions.”

“This rule would mean women across the country could be denied insurance coverage for birth control on a whim from their employer or university,” said Dana Singiser, vice president for public policy and government relations of Planned Parenthood Federation of America, in a statement. “It would expand the Supreme Court’s Hobby Lobby ruling to allow any employer—including huge, publicly traded companies—to deny birth control coverage to their employees. Think about it: Under this rule, bosses will be able to impose their personal beliefs on their female employees’ private medical decisions.”

What’s more, this draft doesn’t require employers opting out of the mandate to notify the government they are doing so; they’re only required to notify employees of a change in their insurance plans. Insurance companies could also themselves refuse to cover contraception if it violates their religious or moral beliefs.

This appears to provide an even broader exemption than what team Trump has previously signaled it would enact. Throughout the campaign, Trump assured religious leaders their organizations would not have to comply with the contraception mandate: “I will make absolutely certain religious orders like the Little Sisters of the Poor are not bullied by the federal government because of their religious beliefs,” he wrote in a letter to Catholic leaders last year, referring to the order of nuns that were party to the Zubik Supreme Court case. And on May 4, Trump, flanked by the Little Sisters of the Poor, signed an executive order about religious liberty, which encourages several agencies to address religious employers’ objections to Obamacare’s preventive care requirements, including contraception.

It is unclear what changes may have been made to this draft since May 23, but what is clear is that the rule is in an advanced stage of the process; the Office of Management and Budget announced that it is currently reviewing it, the penultimate step before the rule is enacted via posting in the Federal Register.

You can read the full draft, obtained by Vox, below:

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Preventive Services Final Rule (PDF)

Preventive Services Final Rule (Text)

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Trump Wants to Let Your Boss Take Away Your Birth Control

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“This Isn’t Science”: We Have No Idea How Much Pain Inmates Feel During Execution

Mother Jones

Just weeks after Arkansas attempted to execute eight men in 11 days, lethal injection in back in the news. On Tuesday, Georgia is scheduled to execute J.W. Ledford for a 1992 murder. Texas was slated to put Tilon Carter to death on Tuesday as well, but he received a stay last week after the state’s court of criminal appeals decided to hear his claims that the jury was misled.

Georgia will use a controversial one-drug protocol—a heavy dose of pentobarbital, an anesthetic that critics say can fail to render inmates fully unconscious. On Monday, Ledford requested that Georgia execute him by firing squad, instead. He argues that a pain medication he takes has altered his brain chemistry so much that the pentobarbital may not work properly, leading to excruciating pain. (Texas was planning to use pentobarbital to kill Carter, as well.)

Americans generally accept the claim that lethal injection is a humane and painless way to kill convicted murderers. A 2014 Gallup poll found that 65 percent of Americans believe that lethal injection is the “most humane” form of capital punishment. According to a 2015 YouGov poll, just 18 percent of respondents described lethal injection as “cruel and unusual punishment,” which is prohibited by the Eighth Amendment. But, despite its widespread use, there is virtually no scientific data to suggest that lethal injection is humane. There’s been very little research done on the effects of lethal injections on humans at all—but the science that is available suggest that inmates may actually experience immense pain before dying.

On a recent episode of our Inquiring Minds podcast, Kishore Hari interviews Teresa Zimmers, an associate professor of surgery at Indiana University School of Medicine. Zimmers, who has spent years researching lethal injection, is sharply critical to the ways in which states kill the condemned.

“What we have here is masquerade,” says Zimmers. “Something that pretends to be science and pretends to be medicine but isn’t.”

Prior to 1972, when the Supreme Court halted executions nationwide, states used a variety methods to put inmates to death, including gas chambers and the electric chair. After the court ruled in 1976 that the death penalty did not constitute cruel and unusual punishment, an Oklahoma state legislator called the state’s medical examiner, Jay Chapman, and asked him if he could come up with a new and humane way to execute prisoners. Chapman has said that he initially thought he wasn’t qualified for the task, but he nonetheless proposed using fatal doses of pharmaceuticals that are typically used to put patients.

Chapman came up with a three-drug protocol: Sodium thiopental, an anesthetic to put the inmate to sleep; pancuronium bromide, which causes paralysis; and potassium chloride to stop the heart. Other states soon adopted this protocol, but there was never much scientific evidence showing it was truly humane.

“It’s not at all clear that the protocol works as advertised,” explains Zimmers.

In 2007, Zimmers was part of a team that analyzed execution records from California and North Carolina and found that lethal injection might actually lead to painful chemical asphyxiation. Zimmers’ team suggested that the thiopental dosages being uses might not be high enough to induce sleep and that potassium chloride might not reliably stop the heart. The potential result: a paralyzed inmate who remains aware while dying from the inability to breathe. Zimmers’ paper concluded:

Our findings suggest that current lethal injection protocols may not reliably effect death through the mechanisms intended, indicating a failure of design and implementation. If thiopental and potassium chloride fail to cause anesthesia and cardiac arrest, potentially aware inmates could die through pancuronium-induced asphyxiation. Thus the conventional view of lethal injection leading to an invariably peaceful and painless death is questionable.

Beginning around 2009, European pharmaceutical companies began refusing to sell their drugs to American states that intended to use them to put inmates to death. The shortages led to a rush to find different lethal injection methods, such as replacing the sodium thiopental with a drug called midazolam or using a single fatal dose of an anesthetic.

And just like with the original cocktail, these new lethal injection techniques have been developed with little scientific rigor. “There’s been a very active substitution of drugs into this protocol with, of course, no corresponding investigation,” says Zimmers.

When Oklahoma used the one-drug protocol of pentobarbital in the execution of Michael Wilson in January 2014, the inmate’s last words were, “I feel my whole body burning.” A few months later, the state tried to put Clayton Lockett to death using a three-drug protocol that included the anesthetic midazolam. Lockett mumbled and writhed on the gurney, before dying of a massive heart attack about 40 minutes after the procedure began. Oklahoma’s executions are now on hold.

Despite the controversy surrounding midazolam, last month Arkansas rushed to execute eight men in 11 days when its supply of the drug was set to expire. After a series of legal setbacks for the state, only four were put to death. The last man to die, Kenneth Williams, reportedly convulsed, jerked, lurched, and coughed for 10 to 20 seconds after prison officials administered midazolam.

Often, the debate over capital punishment centers around the morality of government-sponsored killing or the potential for an innocent person to be executed. But Zimmers suspects that for many people, support for the death penalty relies on the notion that states are using compassionate, scientifically validated method to kill inmates. That notion, Zimmers argues, is simply wrong.

“They should understand that this isn’t science,” she says. “This is a pretense of science.”

Inquiring Minds is a podcast hosted by neuroscientist and musician Indre Viskontas and Kishore Hari, the director of the Bay Area Science Festival. To catch future shows right when they are released, subscribe to Inquiring Minds via iTunes or RSS. You can follow the show on Twitter at @inquiringshow and like us on Facebook.

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“This Isn’t Science”: We Have No Idea How Much Pain Inmates Feel During Execution

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Texas’ Governor Just Signed the Most Anti-Immigrant Bill in Years

Mother Jones

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During an unannounced, five-minute livestream on Facebook Sunday night, Gov. Greg Abbott signed legislation outlawing sanctuary cities and granting law enforcement unprecedented powers in tracking down undocumented immigrants.

“Texans expect us to keep them safe—and that’s exactly what we’re going to do by me signing the law,” Abbott told the camera, punctuating his remarks by tapping the bill before signing it. “Texas has now banned sanctuary cities in the Lone Star State.”

“It won’t be tolerated in Texas,” Abbot continued. “Elected officials and law enforcement agencies, they don’t get to pick and choose what laws they will obey.”

Immigration advocates are describing it as the most hostile state law to undocumented immigrants in the country and point out that sanctuary cities are actually safer than other cities, according to FBI crime data. The Facebook Live event allowed the governor to avoid protests a typical signing would have likely drawn, the Texas Tribune noted. A spokesperson for the governor claimed the move was an effort to reach people directly where they’re consuming news.

Abbott declared banning sanctuary cities, jurisdictions that refuse to fully cooperate with federal immigration authorities, a legislative priority this year, and Texas has quickly become one of the battlegrounds in the national debate over them. When Travis County Sheriff Sally Hernandez announced her department would no longer comply with immigration authorities after taking office earlier this year, the governor cut off funding in retaliation and even threatened to oust her. Meanwhile lawmakers in the statehouse have been debating how wide-reaching the ban on sanctuary cities should be, settling on legislation late last month after a 16-hour marathon hearing. Horrified by the outcome, immigration advocates have pushed back, protesting at the state capitol during the lengthy hearing on the bill last month and gathering outside the governor’s mansion last night.

SB 4 does far more than simply outlaw sanctuary cities. When the new rules go into effect, law enforcement officials and other local leaders who refuse to cooperate with immigration authorities could face to up to a year of jail time and be personally fined up to $4,000. Additionally, any local government violating the law will also be subject to fines—$1,000 at first with each single subsequent infraction adding penalties that can potentially reach $25,500.

The law also grants law enforcement throughout the state sweeping new powers that many immigration advocates consider a form of profiling. One of the most controversial provisions of the new law allows police officers to question someone’s immigration status during encounters such as a routine traffic stop as opposed to during a lawful arrest.

David Leopold, an immigration lawyer and the former head of the American Immigration Lawyers Associates, says it’s the most hostile state law to undocumented immigrants in the country. “It’s like SB1070, the Arizona ‘show me your papers’ law, on steroids,” Leopold says, referring to the controversial legislation that required police to check the immigration status of anyone they detain if they believe that person might be in the country illegally.

“This is a license to racially profile,” Leopold says. “What Texas has done here is told the police…if a person has an accent, is brown, you should probably start asking questions about their immigration status.”

While much of the Arizona law was gutted by the Supreme Court in 2012, the “show me your papers” portion was not struck down—though the justices left open the possibility that such laws could be ruled as being unconstitutional at a later time.

When SB 1070 passed, it sparked outrage across the country and businesses as well as other state governments boycotted Arizona. Immigration activists are strenuously protesting the Texas measure, and the Mexican American Legal Defense and Educational Fund is planning to sue before it takes effect in September. But so far, the new law isn’t attracting nearly the kind of national attention that Arizona’s law once did.

Leopold points out that this law “came up quietly.” In the seven years since SB1070 was debated, he says, the capacity for outrage about these measures has waned because “we’ve had so much outrageous news about immigration, so many outrageous things and shocking things have happened since Donald Trump took office.”

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Texas’ Governor Just Signed the Most Anti-Immigrant Bill in Years

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The Voting Rights Act May Be Coming Back From the Dead

Mother Jones

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On June 25, 2013, the Supreme Court killed the core provision of the Voting Rights Act. Four years later, it may be coming back from the dead.

Before Shelby County v. Holder, the 2013 case, the 1965 Voting Rights Act barred nine states with a history of discrimination against minority voters, and portions of six others, from passing new voting laws without federal approval. The court’s 5-4 decision, written by Chief Justice John Roberts, found that the formula for determining which jurisdictions needed approval—or “preclearance”—was outdated and therefore unconstitutional.

“Coverage today is based on decades-old data and eradicated practices,” Roberts wrote, and “‘current burdens’ must be justified by ‘current needs.'” In other words, states couldn’t be subject to preclearance based on the pervasive discrimination of the Jim Crow era, which Roberts wrote was now firmly in the past. Implicit in that ruling was the idea that states could be brought back under preclearance if they showed new evidence of discrimination. The law contains a provision specifically for that purpose, allowing courts to place jurisdictions under preclearance if they demonstrate intentional discrimination.

Freed by the court’s ruling from oversight for the first time in decades, many of the formerly constrained state and local governments quickly began imposing new restrictions on voting. But by passing measures that curtail voting by minorities, these jurisdictions are essentially calling Roberts’ bluff—and could force the Supreme Court to consider restoring preclearance.

Texas is the likeliest setting for the return of preclearance. In the last two months, federal courts have three times ruled that the state intentionally discriminated against minority voters. Its 2011 voter ID law and two redistricting maps it drew that year—for the state House and for Congress—were intended to limit the voting power of minorities, the courts found. Plaintiffs in the cases are asking the courts to place Texas back under preclearance. One or more of the cases could reach the Supreme Court as early as its next term. If so, the Roberts Court will have to decide what to do with states that demonstrate that racial discrimination in voting laws is not just a thing of the past.

Shelby County said that any preclearance had to be based on current evidence,” says Rick Hasen, an election law expert at the University of California, Irvine School of Law. “And these trials are based on current evidence, not based on something that happened in the 1960s. And so one way of reading this is that the courts are being faithful to what the Supreme Court said in Shelby County, which is that in order to have the extraordinary remedy of preclearance, you need to show that there is a current problem with intentional race discrimination. That’s exactly what’s at stake in these cases.”

In 2010, a conservative backlash to President Barack Obama put Republicans in charge of legislatures and governorships across the country. They quickly passed new voter ID requirements, restrictions on early voting and same-day registration, and other measures that have been found to reduce voting among minorities, the poor, young people, and the elderly. According to the Brennan Center for Justice, by the time of the 2012 elections, 19 states had passed 25 restrictive voting laws.

Fourteen of those laws were blocked by the courts or the Justice Department under the Voting Rights Act’s preclearance rule, and the torrent of voting restrictions began to slow. Shelby changed that. It set in motion a new wave of voter suppression laws across the country. Weeks after the court’s ruling, for example, North Carolina passed a voter suppression bill that the 4th Circuit Court of Appeals, in striking it down, called “the most restrictive voting law North Carolina has seen since the era of Jim Crow,” targeting “African Americans with almost surgical precision.”

No state moved more quickly than Texas to implement a wish list of election reforms that had been blocked under preclearance. Hours after the court’s decision, the state’s attorney general, Gregg Abbott, announced, “With today’s decision, the state’s voter ID law will take effect immediately.” The next day, Gov. Rick Perry signed into law maps for congressional and state Legislature districts that were based on the ones that had been struck down by a federal court under preclearance in 2012 as deliberately discriminatory against minority voters.

Those moves have not fared well in the courts. In April, a federal judge in Corpus Christi ruled that the voter ID law was passed with discriminatory intent. In the past two months, a federal court in San Antonio found both the congressional and the statehouse maps from 2011 intentionally discriminatory. In July, a federal court will determine whether the maps Texas adopted after Shelby are also discriminatory; that case could result in court-drawn maps for the 2018 elections. The string of rulings might lead the courts to reimpose preclearance on Texas. After all, preclearance was intended to target repeat offenders so that the courts wouldn’t be left playing whack-a-mole to strike down discriminatory measures every time they emerged.

“You see the consequence of not having preclearance,” says Mark Gaber, an attorney on the plaintiffs’ legal team in the redistricting cases. “It’s 2017 and we’re still having to litigate about something that happened in 2011.” He adds, “In that period of time, we’ve now gone through three election cycles under maps that quite clearly are—the court’s going to find to be discriminatory.”

Any court that finds intentional discrimination could put Texas back under preclearance for up to 10 years. The courts can decide what types of election laws, if not all of them, would be subject to federal approval.

Wendy Weiser of the Brennan Center, who is part of the plaintiffs’ litigation team in the Texas voter ID case, says there’s a “reasonable chance” that one or more of the Texas cases will result in Texas being placed under preclearance. “The thing that persuades me that this is more likely than not is…the existence of multiple findings of discrimination in the state during this period,” she says. “So it really feels quite widespread.” Hasen concurs that there’s “a fair chance” that at least one of the Texas cases will result in preclearance. Texas would almost certainly appeal a preclearance order, putting the ultimate decision before the Supreme Court.

Texas is not the only place facing the potential return of preclearance. In the days and months after Shelby, Alabama and Mississippi enacted voter ID laws that had previously been held up by preclearance. North Carolina has stood out for the sheer number of voting bills Republicans have passed to preserve their power, including a redistricting map currently before the Supreme Court and a voter ID bill on which it could also rule. At least two cities have already been placed under preclearance in the aftermath of Shelby: Evergreen, Alabama, for gerrymandering its city council districts to produce a majority-white council in a city that is 62 percent African American, and Pasadena, Texas, which also restructured its city council to reduce the power of Hispanic voters. Pasadena is appealing that decision. But if a court places Texas under preclearance, it would mark the return on a much bigger level of a policy thought to be all but dead.

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The Voting Rights Act May Be Coming Back From the Dead

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Trumpcare Will Make the Opioid Crisis Worse

Mother Jones

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There are plenty of reasons why the Obamacare repeal bill that House Republicans passed Thursday afternoon is so controversial. It slashes funding for Medicaid, threatens to raise health insurance premiums for older Americans, and allows states to roll back protections for people with preexisting medical conditions.

But there’s another, less publicized, way in which the GOP’s American Health Care Act could disrupt health care throughout the country. In the midst of the most devastating drug epidemic in US history, the legislation could disrupt addiction coverage for millions of Americans. And thanks to a provision added to the bill last week, insurance companies in some states might no longer include mental health and substance abuse coverage in their health plans.

Because of the speed with which Republicans rushed the bill through the House, the Congressional Budget Office hasn’t yet had time to estimate the number of Americans who would lose their health insurance or how premiums would be affected. But according to a CBO report from March, an earlier version of legislation would have resulted in 24 million fewer people having coverage than under Obamacare. The current legislation will likely result in a similar number of uninsured Americans, says Richard Frank, a professor of health economics at Harvard University. Frank and his colleague, Sherry Glied of New York University, estimate that if Obamacare is repealed, 3 million Americans with addiction disorders would lose some or all of their coverage.

Many of the states that voted Trump into office are among the hardest hit by the opioid epidemic—and are the most dependent on Obamacare for substance abuse treatment. The maps below, produced by the US Department of Health and Human Services in the last days of the Obama administration, show this overlap: Red states on the left have the highest overdose rates per capita; red states on the right have the highest rate of residents who would lose coverage if Obamacare is repealed.

US Department of Health and Human Services

Obamacare was particularly important for those seeking addiction treatment, according to Keith Humphreys, a Stanford University psychiatry professor who advised the Obama administration on drug policy. “It was designed to be very broad, but at the same time we knew that if there was anything that this would help a lot for, it’s addiction,” he told me in February.

That’s largely because of two big changes that Obamacare made to insurance markets—changes that the GOP legislation would roll back or undo completely.

First, Obamacare required insurance companies to cover certain “essential benefits,” including substance abuse and mental health treatment. In order to sell insurance in the individual marketplaces, companies would have to cover addiction treatment, as well as other care such as contraception, emergency services, and pediatric services. (Here‘s the full list of essential benefits.) This was a significant change. In 2011, before Obamacare went into effect, “somewhere close to 40 percent of individual and small group market plans didn’t offer substance abuse and mental health coverage,” says Frank. “And when they did, it was quite limited.”

The bill passed by the House would allow states to opt out of the essential benefits requirements, which means that insurers might once again refuse to cover treatment for mental health and addiction.

The second big Obamacare change for substance abuse treatment was the expansion of Medicaid coverage to millions of additional poor Americans. As I wrote earlier this year:

Under the Affordable Care Act, those who earn up to 138 percent of the federal poverty level are eligible for this government-funded insurance program. In 2012, the Supreme Court ruled that states could choose whether or not they wanted to participate in the program, and 31 states have done so—resulting in health coverage for an additional 11 million Americans through Medicaid expansion. Of those, an estimated 1.3 million used their newly acquired insurance for substance abuse or mental health services, according to an analysis by researchers Richard Frank of Harvard Medical School and Sherry Glied of New York University. In states that expanded Medicaid, 20 percent of hospital admissions for substance abuse and mental health disorders were uninsured in 2013, before the bulk of the expansion provisions kicked in. By the middle of 2015, the uninsured rate had fallen to five percent.

The Republicans’ health care plan would freeze Medicaid expansion, cutting off funds for states adding new enrollees starting in 2020. Those already enrolled in Medicaid expansion plans by 2020 would continue to receive the benefits, but they would be at constant risk of losing that insurance. Anyone who has a gap in insurance coverage of more a month—say because they miss a deadline or their income temporarily changes—would lose eligibility. (A lack of private health insurance would be penalized too: Going more than 63 days without coverage would increase premiums by 30 percent for a year.) These provisions have a lot of public health advocates worried. It’s not uncommon for people, particularly those with serious mental health and addiction problems, to drift in and out of insurance coverage.

Without Obamacare, said Humphreys, “We’re back where we were before: bad access, low quality of care, and a lot of patients being turned away.”

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Trumpcare Will Make the Opioid Crisis Worse

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Justice Sotomayor Slams "Disturbing Trend" of Supreme Court Siding With the Police

Mother Jones

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The Supreme Court has a “disturbing trend” of siding with officers over their alleged victims in cases involving the use of force by police. That’s according to a stinging dissent issued on Monday by Justice Sonia Sotomayor, after the full court voted to let stand the dismissal of a lawsuit against a Houston cop who shot a man in the back during a traffic stop. The court, Sotomayor wrote, has reliably reversed lower-court rulings that favored the plaintiff in such cases, “but we rarely intervene where courts wrongly afford officers the benefit” of the doubt. Justice Ruth Bader-Ginsburg joined Sotomayor’s dissent.

One night in October 2010, Ricardo Salazar-Limon and his friends were driving on a highway outside of Houston when Houston Police Officer Chris Thompson pulled him over. After running the driver’s license and registration and finding nothing amiss, Thomson asked Salazar-Limon to step out of his truck—apparently to conduct a Breathalyzer test. Thompson then tried to handcuff Salazar-Limon, but the driver resisted and began walking back to his truck with his back to Thompson. The officer then drew his gun and ordered him to stop. Salazar-Limon says Thompson shot him within seconds of that order. Thompson claims he fired only after Salazar-Limon reached for his waistband—as if for a weapon—and turned toward him. No weapon was found.

Salazar-Limon sustained crippling injuries. In 2011, he sued Thompson and the Houston police for violating his civil rights. But a federal judge dismissed the suit, ruling that Thompson had qualified immunity because he’d shot Salazar-Limon in the course of his lawful duties. Salazar-Limon never explicitly denied reaching for his waistband during his deposition, nor, the judge wrote, did he offer evidence that he hadn’t—so the only conclusion a reasonable jury could reach was that he had. Thompson thus could have felt threatened and shot him because of it. A federal appeals court affirmed the ruling.

Salazar-Limon appealed to the Supreme Court, which on Monday decided not to hear the case. That was the wrong move, argued Sotomayor. A dismissal should only be granted, she wrote, when the facts of an incident are not in dispute. Thompson claimed the shooting was provoked. Salazar-Limon said it was not. The lower-court judge gave unfair privilege to the officer’s account, Sotomayor said. It was a jury’s job—not a district court judge’s—to determine whose story was more plausible. A juror, she wrote, could easily ask why Salazar-Limon would have reached for his waistband if he didn’t have a weapon. (In a footnote, she cited “the increasing frequency of incidents in which unarmed men allegedly reach for empty waistbands when facing law enforcement officers.”)

Writing for the majority, Justice Samuel Alito said the court rarely reviews cases “where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case”—as opposed to cases in which the court is asked to interpret the law itself. But Sotomayor cited five recent cases in which the court intervened after a lower court ordered an offer to stand trial based on the facts of the case. Improperly dismissing lawsuits against officers who may have acted unlawfully “imposes no less harm” than trying officers who haven’t broken the law, she wrote.

The high court’s decision could encourage federal judges to dismiss civil lawsuits against police officers, says Joanna Schwartz, a professor at the University of California-Los Angeles who studies litigation against police. The ruling could also discourage attorneys from bringing such lawsuits, further limiting the options for redress against police abuses—as prosecutors rarely bring criminal cases and the Department of Justice under Attorney General Jeff Sessions may have little interest in doing so. “Lawyers are not making very much money off these cases. They bring these cases because they believe in them,” Schwartz told me. “As it becomes increasingly more difficult to win anything, it’s going to be even harder for lawyers to make the decision to represent these plaintiffs.”

Sotomayor’s dissent on Monday was her second recent one related to police tactics. Last summer, she cited author James Baldwin and The Atlantic writer Ta-Nehisi Coates while slamming a Supreme Court ruling involving what she deemed an illegal search and seizure: “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” she wrote. “This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.”

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Justice Sotomayor Slams "Disturbing Trend" of Supreme Court Siding With the Police

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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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