We are proud to announce that the Law Review Note of 3L and Executive Editor Elizabeth Snyder will be published!
Article: “Faceprints” and the Fourth Amendment: How the FBI Uses Facial Recognition Technology to Conduct Unlawful Searches
This term has seen a number of partisan redistricting cases come before the United States Supreme Court. So far, the Court has heard oral arguments for Gill v. Whitford and Benisek v. Lamone. Later this month, the Court will hear oral arguments for a third case concerning partisan gerrymandering: Abbott v. Perez. The decisions from these three cases have the potential to greatly impact the jurisprudence of partisan redistricting. The last time the Supreme Court spoke about partisan redistricting was in Vieth v. Jubelirer in 2004. In Vieth, the Court held that challenges to partisan gerrymanders were not in the purview of courts and were non-justiciable. As in many cases in the Supreme Court, Justice Anthony Kennedy was the swing vote. Justice Kennedy believed that a challenge to an extreme partisan map could have been justiciable if there was a clear standard for deciding when partisan redistricting becomes unconstitutional. As oral arguments for Abott near, the question remains whether Justice Kennedy will find if any of these cases present a clear standard for the Court to apply.
Gill v. Whitford
At the start of this term, the Supreme Court heard oral arguments for Gill v. Whitford, which involved challenges to Wisconsin’s voting districts under the First and Fourteenth Amendments. In 2016, the district maps made by the Republican-controlled legislature in 2011 were declared unconstitutional as partisan gerrymander. A three-judge panel in the United States District Court for the Western District of Wisconsin concluded that the maps showed “bad intent and bad effect” and that the map drawers used partisan measurements to ensure there was a Republican advantage.
During elections in 2012 and 2014, Democrats won a majority the votes in the statewide Assembly elections; however, Republicans took a majority of the seats in the state Assembly. For example, in 2012, Republicans made up only 48.6 percent of the vote, but gained 60 seats in the Assembly. Conversely, Democrats won 53 percent of the votes and only took 39 seats in the Assembly. Wisconsin Republicans argued that the maps reflected a natural geographic advantage.
When bringing this case before the Court, the plaintiffs argued that the state legislature diluted the Democratic vote by “cracking” and “packing” districts. The plaintiffs used the “efficiency gap” to make their argument. The efficiency gap shows the number of votes that are “wasted” during elections. Votes can be “wasted” in two ways. First, there can be more votes than needed in order for a candidate to win. Second, there can be too few votes to elect a candidate. The efficiency gap determines if a redistricting plan is biased against a party that “wasted” more votes than the other party. Positive values show an advantage for Democrats and negative values show an advantage for Republicans.
In the two aforementioned elections, the efficiency gaps were -13 and -10, respectively. These numbers identified a significant advantage for Republicans
Benisek v. Lamone
At the end of March, the Court heard a second case involving partisan gerrymandering, Benisek v. Lamone. In 2012, Roscoe Bartlett, a Republican, lost the congressional seat he held for 20 years by a 20 percent margin in Maryland’s 6th Congressional District. Previously, in 2010, Bartlett won that same seat by a 28 percent margin. Consequently, Republican voters in Maryland challenged the redrawing of the congressional district under the First Amendment.
Plaintiffs argued that the Democratic lawmakers in Maryland redrew the district in order to retaliate against those who supported Barlett and to dilute the Republican vote in the district. They further argued the district was redrawn to include more Democrats and to exclude Republicans. They argued that this violates the First Amendment as public officials may not retaliate against individuals for their expression. Here, lawmakers retaliated against voters that associated with a particular party when they redrew the district with the intent to dilute votes for the party not in power. Because of this intent, the Plaintiffs argued the new district map must be invalidated.
During oral arguments, Justice Kennedy expressed interest in the issue of a legislature drawing districts to favor the party currently in power. When the district in question was redrawn to accommodate for a population growth, lawmakers moved the district’s boundaries to include a very Democratic district. This change made the district more likely to vote Democrat than it had in the past. He asked whether this test would preclude legislatures from redrawing districts to account for a population shift that reduced support for a party. This question resembled one Justice Kennedy asked lawyers in Gill.
Abbott v. Perez
This month, the Supreme Court will again take on partisan redistricting via Abbott v. Texas. Abbott is the result of two Texas lawsuits, both named Abbott v. Perez, which centered around two maps—one for congressional districts and one for state legislative districts.
Starting in 2011, voters in Texas filed lawsuits alleging Texas violated both the U.S. Constitution and the Voting Rights Act. The lawsuits alleged that, between 2000 and 2010, Texas’ Republican-controlled legislature redrew congressional and legislative plans in order to dilute the vote of Latinos and African Americans, who made up 90 percent of Texas’ new population growth. Due to the growth, the state gained four new seats in the House of Representatives. In 2011, the Texas legislature redrew district maps to incorporate the new seats.
The newly redrawn district maps never went into effect. A three-judge panel in the United States District Court for the Western District of Texas blocked district maps prior to the 2012 election and created interim maps. The State appealed to the panel’s decision to the Supreme Court, which “threw out” the interim maps and told the State’s legislature to use the old district maps to draw new maps. In 2013, the Texas legislature adopted new maps, which were virtually the same to the maps it drew in 2011.
The maps, the 2011 district map and the newly adopted 2013 district maps, were once again taken to the district court. In August 2017, a three-judge panel in the United States District Court for the Western District of Texas invalidated two congressional districts. It found that one violated both the U.S. Constitution and the Voting Rights Act and that the other was drawn to minimize minority voting power and constituted impermissible racial gerrymandering. The panel also found that state legislative districts were intentionally packed and cracked districts in the Dallas-Fort Worth Area in order to dilute the minority vote. The most important holding for the panel was that the State’s districts were redrawn based on a “litigation strategy” as parts of the 2011 maps that were declared unconstitutional remained unconstitutional in the 2013 maps. The State did not redraw the maps to comply with the U.S. Constitution or the Voting Rights Act, but rather to shield the State from further legal challenges. The State was ordered, once again, to redraw the maps.
Shortly after the panel’s decision, Texas filed an appeal to the United States Supreme Court, asking for an injunction. The Court issued a temporary stay in response, and the consolidated cases will be argued on April 24, 2018.
Over the past six months, the Supreme Court has entertained a myriad of arguments concerning political redistricting. Of the nine Justices, only four were in the bench in 2004 when the court heard Vieth – Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, and Kennedy. In Vieth, Justices Thomas and Kennedy voted with the majority; and Justices Breyer and Ginsburg joined the dissent. Nevertheless, the question remains: has the Court finally found a case that presents a clear standard that can be used in determining whether or not state legislatures have engaged in unconstitutional partisan gerrymandering? While the outcome of these cases is not clear, one thing is: Justice Kennedy remains the swing vote on this issue, and his vote could potentially change how partisan redistricting is viewed.
Adam Liptak, Supreme Court, Again Weighing Map Warped by Politics, Shows no Consensus, N.Y. Times (Mar. 28, 2018).
Adam Liptak and Michael D. Shear, Kennedy’s Vote is in Play on Voting Maps Warped by Politics, N.Y. Times (Oct. 3, 2017).
Amy Howe, Argument Preview: Texas Redistricting Battles Return to the Court, SCOTUS Blog (Apr. 18, 2018).
Barry C. Burden, Everything You Need to Know About the Supreme Court’s Big Gerrymandering Case, Washington Post (Oct. 1, 2017).
Greg Stohr, U.S. Supreme Court Grapples with Partisan-Gerrymandering Lawsuits, Bloomberg (Mar. 28, 2018).
Mark Stern, Undecided Court, Slate (Mar. 28, 2018).
Robert Barnes, Even on Second Look, Supreme Court Seems Stumped on Gerrymandering Issue, Washington Post (Mar. 28, 2018).
The Supreme Court Takes on Two Redistricting Cases from Texas, Economist Blog (Jan. 15, 2018).
Photo courtesy of ExchangeWire.
California is relatively progressive when it comes to most issues. But has it gone too far? A judge in Los Angeles County Superior Court ruled that coffee must now carry a warning about a cancer-causing chemical simmering inside each cup. While such a decision may sound ominous, a look inside California’s mechanism for imposing such warnings proves that these cancer notices may be anything but.
All over California, people cannot seem to escape warning signs in bold, capital letters of the risk of cancer, birth defects, or other reproductive harms from various products. This all began when California voters passed legislation called Proposition 65, formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986. Under Proposition 65, the Office of Environmental Health Hazard Assessment compiles a list of chemicals, currently at nearly 900, that are known to cause cancer or birth defects. Businesses in California are then required to alert consumers if any of these chemicals are present on their premises. The law relies on citizen enforcement, and it allows anyone to sue. There is no injury requirement, and plaintiffs do not even need to have purchased the product that is the subject of the suit. Further, the law incentivizes private plaintiffs by allowing them, if successful, to share in any civil penalties awarded, in addition to entitling them to seek attorney’s fees.
Council for Education and Research on Toxics v. Starbucks Corp., et al.
In 2010, a not-for-profit group, the Council for Education and Research on Toxics, sued 90 coffee retailers, arguing that they were violating Proposition 65 by failing to warn consumers of a chemical in their coffee that could cause cancer. The chemical, acrylamide, forms naturally in some foods as they are cooked at high temperatures, and it has been found to cause cancer in mice in high doses. That danger has placed acrylamide on the Proposition 65 list of cancer causing chemicals.
The case was divided into phases, with the first phase of the trial covering “Defendants’ affirmative defenses of (1) ‘no significant risk level’; (2) First Amendment; and (3) federal preemption.” The court rejected the defendants’ arguments during this phase of the trial and, thus, the defendants moved on to phase two of the case, where a ruling was released on March 28, 2018.
In phase two, the defendants––who include Green Mountain Coffee Roasters Inc., the J.M. Smucker Company, Kraft Foods Global, and Starbucks, among others––argued that the levels of acrylamide in coffee should be considered safe and that the health benefits of coffee outweigh the risks of acrylamide. The defendants tried to prevail at trial by showing that, while their product may contain acrylamide, considerations of public health would support such an alternative risk level for exposure to the chemical, in addition to showing that this alternative level is supported by a quantitative risk assessment. They presented evidence from renowned experts, such as David Kessler, the former head of the U.S. Food and Drug Administration under both President Bush and President Clinton. Another expert, who performed a quantitative risk assessment of acrylamide, was also used. However, the court ultimately ruled that the “[d]efendants failed to satisfy their burden of proving by a preponderance of evidence that consumption of coffee confers a benefit to human health.”
The defendants are represented by lawyers from many of the nation’s largest law firms. The plaintiff is represented by a four-person firm. Ultimately, this was a David-and-Goliath battle, and David and his slingshot prevailed.
Burden of Proof
The defendants’ loss might seem surprising, however, much of it may have to do with the high burden of proof they faced in this case. When a plaintiff brings suit under Proposition 65, he or she only needs to show that a chemical in a product sold by a defendant is listed as harmful under the law. The burden is then shifted to the defendant to prove that the chemical is present at such a low level that the product does not require a warning. Here, the defendants had to prove that acrylamide in coffee would not cause one or more cases of cancer for every 100,000 people exposed, over a period of 70 years.
Statistically, meeting this empirical burden was a near practical impossibility for the defendants. The lifetime risk of cancer is one in two; thus, of the theoretical 100,000 coffee drinkers exposed to acrylamide, roughly 50,000 of them would eventually develop cancer for a host of other reasons in 70 years. Therefore, proving that one of those 100,000 people would develop cancer specifically because of acrylamide, rather than family history, genetics, or any other carcinogenic exposures would require a 70-year long study carefully controlling all the exposures to everything on earth in more than 100,000 people. But experimenting with 100,000 people would still not be enough. It would require more than 85 billion participants to build up the statistical power to support a strong claim that acrylamide does not cause cancer in one or more people out of every 100,000. This would become the largest, longest, and costliest study in the history of biomedical research, by orders of magnitude.
While this may all seem daunting, it is important for manufacturers, distributors, and retailers outside of California to be aware. Proposition 65 allows a suit to be initiated against any company with more than 10 employees doing business in California. After a successful suit, not only would a warning be necessary for the product, but companies could also be required to pay penalties of “up to $2,500 ‘per day for each violation.’” This means that even small, New York companies, who have no similar law in their states, but that occasionally sell products to stores in California, should be aware of the listed chemicals under Proposition 65 in order to make their business decisions accordingly.
Although many businesses have been ‘steaming’ over the ruling, they are not the only ones feeling the impact. When cancer notices are brewing everywhere, from indoor garages to the Disneyland Resort to any place that serves alcohol, this may quickly diminish the purpose of the law and make customers overlook such warnings.
Alexander Nazaryan, Will coffee in California come with a cancer warning?, Los Angeles Times (Feb. 18, 2018).
Brendan Borrell, Are Proposition 65 warnings healthful or hurtful?, Los Angeles Times (Nov. 2, 2009).
California coffee may soon come with a cancer warning, but should consumers worry?, CBS News (Feb. 8, 2018).
Council for Educ. and Research on Toxics v. Starbucks Corp., et al., No. BC435759, (Super. Ct. Cal. Mar. 28, 2018).
David Spiegelhalter, Coffee and cancer: what Starbucks might have argued, University of Cambridge: Winton Centre for Risk and Evidence Communication (Apr. 2, 2018).
Jenna Greene, Daily Dicta: Bitter Brew: What Went Wrong in California’s Coffee Lawsuit, The American Lawyer: Litigation Daily (Apr. 2, 2018).
Nate Raymond, Starbucks coffee in California must have cancer warning, judge says, Reuters (Mar. 29, 2018).
Norman C. Hile, et al., Beware Calif.’s Proposition 65, Law 360 (Jul. 19, 2011).
State of Cal. E.P.A. Office of Envtl. Health Hazard Assessment Safe Drinking Water And Toxic Enforcement Act Of 1986, Chemicals Known to the State to Cause Cancer or Reproductive Toxicity (Dec. 29, 2017).
Photo courtesy of CNN.
When a new class of associates joins Latham & Watkins in Boston, they’re always treated to a ‘pep talk’ by one of the founding partners of the Boston office: Phil Rossetti. Phil tells them about the importance of paying attention to detail, treating others with respect, and putting in the work. While all of this sounds rather obvious, Phil says that the most pragmatic and obvious of tasks are what make all the difference between a good lawyer and a great lawyer.
Phil grew up just a few miles outside of Syracuse, New York, in the Town of Marcellus. He studied economics at the University of Rochester but then returned to Syracuse for law school, having always loved Syracuse University. He recalls how he and his high school friends would go to Marshall Street to browse the records at the local record store, or how they would sit on the floor of Manley Field House to watch the Orangemen play basketball. It was only natural that Phil chose Syracuse University College of Law to get his juris doctor.
In 1978, he began his 1L year. Phil had always loved business, and he realized that he wanted to be a part of corporate law and the immense possibilities that came with it. So, he started taking classes and internships that would prepare him for that career.
One of those legal internships, held during his 2L summer, was working as an associate for Bond, Schoeneck & King in downtown Syracuse. As for activities, Phil was very involved in the Syracuse Law Review, where he served as Editor-in-Chief during his 3L year. He recalls working in E.I. White Hall, where the members would gather together in their little office to read page proofs and work on the quickly-growing issue, the Survey of New York Law, now the cornerstone publication of the Syracuse Law Review.
Phil enjoyed being involved in these academic endeavors because he felt that law school made him feel as though he was “studying something he could really use and implement in his career and profession going forward.” Some of his favorite professors – Ted Hagelin, Richard Goldsmith, and Peter Bell – taught him to understand the legal principles while fitting them into a larger context, which he found particularly helpful. He even remembers going home for Thanksgiving his first year and telling his parents, “Don’t tell anyone, but I actually really like law school!”
Following law school, Phil accepted a position in Boston at the firm of Hutchins & Wheeler. He knew that New York City was a hot spot for many of his colleagues, but he felt that Boston offered a sophisticated legal practice in a manageable and livable city.
“Corporate law and business have always been strong dynamics in Boston, particularly in the ‘80s and ‘90s when the economy was very strong,” he said. “The market was also strong for lawyers in Boston. I think the great part, though, was that the educational institutions and culture of Boston generated a tremendous number of technology companies and startups. That’s where I wanted to be.”
Following his time with Hutchins & Wheeler, Phil moved over to Hale and Dorr, which years later merged with Wilmer, Cutler & Pickering to become WilmerHale. For nearly three decades Phil worked at WilmerHale, where he worked on mergers and acquisitions, IPOs, tech company startups, and more. He loved the work, he loved Boston, and he was about to be presented with a new and exciting opportunity: to become a founding partner of a new office.
In 2011, Phil and five other attorneys opened the Boston office of Latham & Watkins, with Phil serving as the office managing partner for the first four years. Today, Phil continues to work in corporate and securities law with an emphasis on mergers and acquisitions, emerging companies, and venture capital financings.
“I really enjoy being able to counsel companies and to help them grow,” he said. “I pride myself on being able to give good business advice in addition to legal advice. I have seen so many situations over the years and have come to love the life cycle of a company . . . I have lived that life cycle so many times that I can anticipate issues and help position a client for the best outcome.”
“People rely on lawyers to anticipate all of the things that can happen,” he said. “So, when we’re negotiating contracts or transactions, we need to anticipate what can happen, even if there’s only a 1% chance of happening. If it could, it will, so plan for it.”
It is this type of thinking and experience that has led Phil to be named a leader in Corporate Law and M&A for the last three consecutive years by Chambers USA and to be recommended by The Legal 500 U.S. of 2012.
Today, Phil finds himself offering advice and counsel to more than just clients; he does so for Latham’s new associates and summer associates in the Boston office.
“When I was just starting out, I would travel with a senior partner,” he said. “It was my job to make sure the car was there to pick us up, plane reservations and dinner reservations were set, and that we had directions to the right locations at the right time. It may sound silly and trivial, but planning, paying attention to detail, and taking initiative: that’s what helps you get ahead. It is important that young lawyers show initiative in everything they do, and don’t wait for someone to figure it out for them. Practical instincts and attention to detail are what set you apart from everybody else.”
Whether it’s advising a client, or giving a pep talk to a summer associate, Phil has set the bar high, not only for those around him, but for the legal profession.
Syracuse Law Review looks forward to recognizing Phil and his many accomplishments at the Law Review Banquet on April 12, 2018.
This story was written by Legal Pulse Editor Samantha Pallini and is the eighth installment of Syracuse Law Review’s monthly feature, “Alum of the Month.” Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus!
We are proud to announce that the Law Review Note of 3L and Executive Editor Veronica Ramirez will be published!
Publication: Syracuse Law Review, Volume 68, Book 2
Article: Fashion Statements Turned Endorsements: How FTC Enforcement Could Cripple the Internet’s Trendsetters
While in law school, Veronica served as an Executive Editor for the Syracuse Law Review and Logistics Director of the Moot Court Honor Society. She was also an arguing member of the ABA Appellate Team, a semifinalist of the Lionel O. Grossman Trial Competition and Mackenzie Hughes Appellate Advocacy Competition, and a quarterfinalist of the Bond, Schoeneck & King Alternative Dispute Resolution Competition.
Veronica Ramirez is originally from Miami, Florida and attended the University of Miami where she earned her Bachelors in Political Science and Public Relations. After her first year in law school, Veronica interned at the New York State Attorney General’s office in Rochester, New York. She continued to gain practical experience into her second year of law school, externing at the United States Attorney’s Office in the Northern District of New York. Veronica then spent her second summer at Coughlin & Gerhart in Binghamton, New York and will return as an associate after graduation. Currently, Veronica is externing for the Honorable Therese Wiley Dancks.
In addition to being selected for publication in Volume 68, Veronica also earned the Samuel J.M. Donnelly Publication Award and scholarship.
We are proud to announce that the Law Review Note of 3L and Lead Articles Editor Ryan White will be published!
Publication: Air University Press/United States Air Force JAG Corps
Article: Autonomous Weapons Systems and the Insider Threat: Why Humans Are the Weakest Link in “Robot Killers”
Ryan is a third-year student at Syracuse University College of Law and a Master of Public Administration candidate at the Maxwell School of Citizenship and Public Affairs. He attended Wesleyan University in Connecticut for his undergraduate degree, where he was a member of the men’s ice hockey team.
Ryan serves as Lead Articles Editor for the Syracuse Law Review, a research assistant for Professor William C. Snyder at the Institute for National Security and Counterterrorism, and works with the Veterans Legal Clinic.
Ryan was a summer associate for Arnold & Porter in Washington, D.C. during the summer of 2017. He will return to Arnold & Porter following graduation this year.
On March 30, 2018, a federal judge granted a preliminary injunction blocking the Office of Refugee Resettlement (ORR) from interfering with or obstructing access to abortion services for all pregnant, unaccompanied immigrant minors in legal custody of the United States.
The ORR is responsible for the care and placement of unaccompanied, immigrant minors. These minors are placed in shelters, run by various aid organizations, where they have full access to medical care.
Under the Obama Administration, ORR gave immigrants in the custody of the United States access to abortion services at their own expense, paying for such services only in cases of rape, incest, or a threat to the minor’s life.
In March of 2017, the Trump Administration made known its refusal to “facilitate” such procedures for “pregnant teenagers traveling alone on the grounds that they had the option to voluntarily return to their home countries or to find private sponsors in the United States to assist them in obtaining procedures.” In consequence, ORR informed federally-funded shelters that their employees were “prohibited from taking any action that facilitates an abortion without direction and approval from the Director of ORR.”
Multiple individual cases have been brought in response to the March directive. There several named plaintiffs in a class action suit.
(1) Jane Doe
Jane Doe (“J.D.”) was apprehended at the U.S.-Mexico border and placed in an ORR shelter in Texas in September of 2017. After finding out she was pregnant, J.D. sought to terminate her pregnancy. She received a judicial bypass of Texas’ parental notification and consent requirement, obtained private funding, and arranged for transportation to the medical facility. However, ORR refused to transport or allow anyone else to transport her to the facility, claiming that doing so would constitute the facilitation of an abortion. She subsequently sought injunctive relief, which was granted on October 18, 2017; however, ORR sought an emergency stay, pending appeal. Just a couple of days later, the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, granted the injunction. Consequently, J.D. was able to proceed with her abortion.
(2) Jane Poe
In December of 2017, Jane Poe (“J.P.”) was in an ORR shelter in an undisclosed location, when she decided to terminate her pregnancy after discussing the options with her physician. Her pregnancy was the result of a rape prior to her crossing the U.S.-Mexico border. She requested to have an abortion three times, threatening to hurt herself if she could not terminate her pregnancy. The Director of ORR, E. Scott Lloyd, claims to have refused to sign off on her abortion because he believes abortion represents “violence that has the ultimate destruction of another human being as the goal.” Lloyd determined that having an abortion would not be in J.P.’s best interest since “there is no medical reason for abortion, it will not undo or erase the memory of the violence committed against her, and it may further traumatize her.” The U.S. District Court for the District of Columbia granted J.P.’s request for injunctive relief, and she was allowed to obtain an abortion.
(3) Jane Roe
Jane Roe (“J.R.”) was in an ORR shelter in an undisclosed location, when she learned she was pregnant on November 21, 2017. She decided to terminate her pregnancy, but the ORR refused to allow it. The U.S. District Court for the District of Columbia granted J.R.’s request for injunctive relief, but ORR appealed. However, before the case was concluded, J.R. turned eighteen. Subsequently, ORR moved for dismissal due to the fact that J.R. was not longer a minor. J.R. was thereafter transferred to the custody of the Department of Homeland Security, where regulations allowed her to obtain an abortion. ORR has custody over unaccompanied immigrant minors and Immigration and Customs Enforcement, part of the Department of Homeland Security, has custody of other unauthorized immigrants, including adults. Under current governmental policy and regulations, adult women in Immigration and Customs Enforcement custody are permitted to have abortions.
(4) Jane Moe
Jane Moe (“J.M.”) was denied an abortion while in ORR custody in an undisclosed location. She obtained private funds to pay for procedure and staff at the shelter were willing to accompany her to a clinic. She filed with the U.S. District Court for the District of Columbia seeking a temporary restraining order on January 11, 2018. ORR responded by claiming they had found a sponsor for J.M., A sponsor is similar to a foster parent. They have to provide a home for the minor and ensure that they appear at all immigration proceedings. While in their care, a sponsor may take the minor to get an abortion. J.M. was released into a sponsor’s custody on January 14, 2018.
The Supreme Court held in Roe v. Wade that a woman has a constitutional right to choose whether to have an abortion. In Planned Parenthood v. Casey, the Supreme Court further held a statute will be held unconstitutional if it has the purpose or effect of imposing an undue burden upon, or a substantial obstacle in, the path of a woman seeking an abortion.
In Maher v. Roe and Harris v. MaRae, the Supreme Court held that prohibiting the use of Medicaid funds for abortions did not place an undue burden on a woman’s access to an abortion. In comparison, there was never an issue over the use federal funds to pay for abortions in this case. For all plaintiffs mentioned, private funding was available to pay for the abortions.
The United States District Court for the District of Columbia held that “ORR’s policies and practices infringe on the female U[naccompanied] C[hildren]’s constitutional rights by effectively prohibiting them from ‘making the ultimate decision on whether or not to continue their pregnancy prior to viability—a quintessential undue burden.” Judge Tanya S. Chutkan noted that the right of a minor to choose whether to terminate her pregnancy is “not diminished by [her] status as [an]unauthorized immigrant.”
Government officials argued that their polices did not create an undue burden because the unaccompanied, immigrant minors could voluntarily deport themselves to their home country or be placed with a sponsor. The court disagreed with this argument because, by choosing to be deported, the minor is relinquishing any claim regarding her entitlement to remain in the United States. Judge Chutkan claimed that this creates a “Hobson’s choice, wherein one set of rights must be waived in order to effectuate another.”
In addition, the other option of being placed with a sponsor also creates an undue burden. A sponsor is similar to a foster parent because they are responsible for the care and custody of the minor until their immigration proceedings are concluded. Sponsors have to be either related to the minor or have some “bona fide social relationship” with the minor prior to entering the United States. This option creates an undue burden because it is a lengthy and complex process with ORR having the final say on approval. In one instance, it took over nine weeks to find a sponsor.. Depending on how far along one’s pregnancy is, finding a sponsor could exceed the time limit on a legal abortion. The court held that ORR may not create or implement any policy that takes away unaccompanied immigrant minors’ right to choose whether to have an abortion.
The case against ORR’s policy will proceed as a class action in the United States District Court for the District of Columbia representing “all pregnant, unaccompanied immigrant minor children who are or will be in the legal custody of the federal government.” There were at least 420 pregnant unaccompanied minors in ORR custody in 2017, so the class action will cover numerous pregnant minors. Based on the prior similar decisions, it is likely that the court will side with the plaintiffs, guaranteeing access to abortion services for unaccompanied immigrant minors.
Ann E. Marimow, Spencer S. Hsu & Maria Sacchetti, U.S. Government Ordered to Allow Abortion Access to Detained Immigrant Teens, The Washington Post, Mar. 30, 2018.
Brigitte Amiri, A Fourth Young Immigrant Woman is Being Blocked by the Trump Administration From Obtaining an Abortion, American Civil Liberties Union, Jan. 11, 2018, https://www.aclu.org/blog/reproductive-freedom/abortion/fourth-young-immigrant-woman-being-blocked-trump-administration
Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017).
Garza v. Hargan, No. 17-cv-02122, 2018 U.S. Dist. LEXIS 54899 (D.C. Cir. Mar. 30, 2018).
Harris v. McRae, 448 U.S. 297 (1980).
Jonathan Blitzer, The Trump Officials Making Abortion an Issue at the U.S.’s Refugee Office, The New Yorker, Oct. 26, 2017, https://www.newyorker.com/news/news-desk/the-trump-officials-making-abortion-an-issue-at-the-uss-refugee-office.
Kat Greene, Teen Detainees Win Block on Abortion Ban, Class Cert., Law360, Mar. 30, 2018, https://www.law360.com/articles/1028634.
Maher v. Roe, 432 U.S. 464 (1977).
Matt Stevens, Judge Temporarily Stops U.S. From Blocking Undocumented Teenagers’ Abortions, The New York Times, Mar. 31, 2018, https://www.nytimes.com/2018/03/31/us/abortion-immigrant-teens.html.
Planned Parenthood v. Casey, 505 U.S. 833 (1992).
Roe v. Wade, 410 U.S. 113 (1973).
Photo courtesy of Washington Examiner.