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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