jlieditors, Author at Minnesota Journal of Law & Inequality

Choice or Coercion? How the Push to Avoid Formal Foster Care Has Contributed to the Creation of a Dangerous Hidden Foster Care System

By jlieditors

By Sydnie Peterson*

Family units will often come into contact with child protective agencies when they are at their most vulnerable and in crisis. This was the case for Brian Hogan, whose first experience with local child protective agencies occurred after his wife experienced a heart attack and was sent to a hospital approximately two hours away from his home in Murphy, North Carolina. After receiving the tragic news that his wife would likely not make it through the night, Hogan decided to leave his daughter in the care of his neighbors so he could spend what he thought would be his wife’s last moments by her side. While Hogan’s daughter admittedly enjoyed her time with the neighbors, school officials reported that she smelled of cat urine and lacked appropriate clothing. In response, local child protective agencies stepped in to investigate Hogan’s household. The local agency implemented a safety plan where Hogan’s daughter would be put in the temporary custody of Hogan’s father, Warren.

Unfortunately, Hogan’s hard times would continue after his wife’s heart attack. Although she recovered, Hogan lost his apartment soon afterward due to financial hardships, forcing him to move in with his mother-in-law. Ultimately, local child protective agencies asked Hogan to relinquish custody to his father indefinitely. Hogan could not read, had no resources to explain his legal options, and was intimidated by the threat of his daughter being handed over to the state through the foster care system. Feeling he had no other choice, he consented to surrendering custody to his father with no promise of visitation or a reunification plan.

What occurred to Brian Hogan is not routine. Safety plans are commonly introduced when a child protective agency learns of neglect and these plans often include placements with family members. Nonetheless, after the safety plan is implemented and the family unit reaches a stable point, it is standard procedure for state family court to then determine what further action is in the best interests of the child. Once state family court gets involved, a myriad of integral rights come into effect, including procedural and substantive due process rights. Further, when children are placed into foster care, state agencies are obligated to instill more safeguards. First, state agencies must put reunification plans in place to bring the family unit back together once certain objectives have been completed. Second, state agencies have an obligation to ensure all foster care households are safe and to provide payments to caretakers. Lastly, state agencies have obligations to guarantee the child is receiving adequate healthcare and other rehabilitative services. When children are placed with families outside of the foster care system, like Hogan’s daughter, the state has no obligation to attempt reunification of the family unit, ensure safety, provide payment, or guarantee the variety of services offered to foster families. This often leaves families estranged for long periods of time. Also, it can leave children in hazardous homes and frustrate family members who have accepted the responsibility of caring for the child when they lack sufficient resources to effectively do so.

While it may appear obvious why the hidden foster care system is problematic, this is not always clear to families. Not partaking in the formal foster care system can be enticing. First, the formal foster care system commonly places children with strangers. Children may find placement with a stranger frightening and communicate this feeling to their parents. Also, parents may believe that once their child is placed into a home with a stranger, they will lose all access to them. Further, the formal foster care system is entrenched in the legal system, which appears unapproachable and costly to many, especially individuals who are impoverished or otherwise vulnerable. For these reasons, families have good reason to believe avoiding the formal foster care system is in their best interests, especially when facing pressure from a child protective agency.

Overall, this informal foster care system is hidden because state agencies are not required to file a petition alleging abuse or neglect when placing a child with a family member. Therefore, it is uncertain how many families have been uprooted by the hidden foster care system. Josh Gupta-Kagan posits in his Stanford Law Review article that tens to hundreds of thousands of families may have been impacted by the hidden foster care system on a temporary or permanent basis. This ultimately presents a problem of great magnitude that requires solutions.

Gupta-Kagan provides solutions to mitigate the harms of the hidden foster care system in his article. First, he argues that all parents subject to a safety plan should be appointed an attorney which will help bolster families’ understanding of the safety plan and allow them to negotiate with better leverage. This could ultimately result in better safety plans for children and families, with safer placements and clearer reunification plans. Second, Gupta-Kagan recommends that a maximum length requirement be placed on safety plans. Therefore, a reunification would also be the goal, and if reunification was impossible given the circumstances, the court would intervene. Gupta-Kagan advocates for a thirty-day safety plan maximum, as he believes any longer is unreasonable without court intervention. Third, he argues that parents should always be able to ask the court to review safety plans without consequence. These spontaneous reviews would create a check on state agencies’ powers while still allowing the informal safety plan practice when it is beneficial.

Ultimately, Brian Hogan regained custody of his daughter and was awarded $4.6 million dollars after winning a civil suit against the Cherokee County Department of Social Services. However, the Hogan family is but one of many that have been impacted negatively by the hidden foster care system. More broad reforms, like those presented by Gupta-Kagan, must be implemented to ensure that parents have a strong understanding of the implications of foregoing the traditional foster care system and that they do not feel coerced by the feigned perks of the hidden foster care system.

* Sydnie Peterson, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member

Will the Indian Child Welfare Act Survive? The Supreme Court Will Decide in Haaland v. Brackeen

By jlieditors

By Layni Miramontes*

The Indian Child Welfare Act (ICWA) is a federally enacted statute that became law in 1978 as a response to the disproportionate number of Native children that were being systemically removed from their homes with little to no evidence justifying their removal. ICWA was the legislative response to the U.S. government’s brutal history of enforcing cultural assimilation onto Native groups by removing Native children from their families. Its purpose is to “to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families….” This purpose was achieved by giving tribal governments exclusive jurisdiction over Native children that live on tribal property and the right to intervene in child custody proceedings that involved Native children that do not live on tribal property. Specifically, the Act includes a “placement preference” in child custody determinations that prefers placing Native children with Native families, over non-Native families.

Haaland v. Brackeen is a pending Supreme Court case in which the Court will decide the constitutionality of ICWA. The plaintiffs in this case include the states of Texas, Indiana, and Louisiana, non-Natives who sought to adopt Native children, and one biological mother of a Native child. The individual plaintiffs listed are white couples that attempted to adopt, or did adopt, Native children. The Cliffords, a Minnesota family, fostered a Native child, Child P., and later sought to adopt her.[1] They were confronted with legal battles from the Child P’s biological grandmother, who eventually gained custody of the Native child. The Brackeens had previously adopted a Native child, A.L.M, in 2018, and are now seeking to adopt her biological brother.[2] The Librettis had also adopted a Native child, Baby O, in 2018, but in their case, the Native biological mother supported the adoption.[3] Despite Baby O’s mother’s support, the Ysleta del sur Pueblo Tribe (which the biological father belongs) attempted to intervene in the custody proceedings and remove the Baby O from the Lebrettis.[4] This attempt eventually failed and the Pueblo Tribe agreed to settle once the Lebrettis joined in the constitutional challenge of ICWA.[5]

Haaland v. Brackeen was initially filed by the above plaintiffs against the United States in the District Court for the Northern District of Texas, in late 2017. The case quickly caught the attention of country and various indigenous groups, and the Department of the Interior, the Department of Health and Human Service, the Bureau of Indian Affairs, along with several other federal officials and Tribes intervened and joined the fight in support of ICWA.

These plaintiffs made two main arguments challenging the constitutionality of ICWA. First, the plaintiffs argue that the statute violates the Equal Protection Clause of the Fourteenth Amendment, because the statute “imposes ‘race-based’ restrictions on foster care and adoption, which may not be in the child’s best interest.” The plaintiff’s second argument rests of the Anti-Commandeering Doctrine under the Tenth Amendment. The Anti-Commandeering Doctrine prohibits Congress from “commandeering” areas of law that are reserved to the state through the Tenth Amendment. In essence, the plaintiffs are arguing that Congress exceeded its authority in enacting ICWA and that states should not be charged with complying with a law that Congress never had the authority to enact.

The Texas District Court ruled in favor of the plaintiffs, holding that ICWA violated both the Fourteenth and Tenth Amendments. The United States Court of Appeals for the Fifth Circuit reversed the decision of the District Court, reestablishing the ICWA was constitutional. Eventually, the Fifth Circuit agreed to review the case en banc, which resulted in a non-unanimous 325-page opinion. The Fifth Circuit held that Congress had the authority to enact ICWA and that the Act’s reliance on the definition of an “Indian child” was not necessarily based on race. Following this decision, all parties, including the Department of Justice, Tribal Groups, the state of Texas, and the individual plaintiffs, asked to court to grant certiorari and review the Fifth Circuit’s decision.

After this extensive litigation, and the filings of amicus briefs by 479 Native Tribes, 62 American Indian Organizations, 87 members of Congress, 23 states and Washington D.C., all in support of the ICWA, Haaland v. Brackeen finally reached oral argument in front of the Supreme Court on November 9, 2022. As of now, the constitutionality of ICWA is solely in the province of the Supreme Court as we await their decision.

Legal scholars have expressed concern over the possibility of the Supreme Court finding ICWA to be unconstitutional, warning that it could have “catastrophic consequences” for the future of Tribal and United States relations. The American Bar Association noted that Haaland v. Brackeen “means nothing less to the tribes than the validation and continuation of their existence as sovereign nations.” Considering the United States government’s horrific treatment of Native people in the past, the Act serves important purposes in preserving tribal culture and heritage. The loss of the right of Tribal Governments to exercise exclusive jurisdiction over child welfare proceedings and to intervene in cases dealing with Native children living outside of the reservation could lead to the devastating destruction of Native communities. The only thing that is known for certain is that the future of ICWA is in the hands of nine unelected justices, who are comfortable overturning law that millions of people have come to rely on.

*Layni Miramontes is a Note & Comment editor on JLI Vol. 41.

[1] Brackeen v. Haaland, 994 F.3d 249, 62 (5th Cir. 2021).

[2] Id. at 58–60.

[3] Id. at 60–61.

[4] Id.

[5] Id.

The Clash Between LGBTQ Anti-Discrimination Law and Freedom of Speech in 303 Creative v. Elenis: Which Will Take the Cake?

By jlieditors

By Elizabeth Wellhausen*

In December 2022, the Supreme Court heard oral arguments for 303 Creative v. Elenis, a case that is basically a “redo” of Masterpiece Cakeshop v. Colorado Civil Rights Commission.[1] In Masterpiece, a baker refused to make a wedding cake for a same-sex couple because same-sex marriage conflicted with his religious views.[2] The Colorado Civil Rights Commission argued that the baker’s refusal violated Colorado’s Anti-Discrimination Act which prohibited places of public accommodation from discriminating based on sexual orientation.[3] However, the Court avoided ruling on the free speech and free exercise of religion claims by deciding that the commission violated its duty of neutrality by showing hostility towards the baker’s religious beliefs.[4] Therefore, the Court reversed but did not decide whether the baker was entitled to discriminate based on his religious views.[5]

The Court is reviewing the same Colorado law in 303 Creative. In this case, a website design company alleges Colo. Rev. Stat. § 24–34–601(2)(a) (2017) violates the founder’s rights to freedom of speech and freedom to exercise her religion by requiring her to design wedding websites for same-sex couples.[6] The Court agreed to hear the case but with a twist; it would only hear arguments based on the free speech issue, not the free exercise issue.[7] Thus, the seemingly narrow question in front of the Court is whether an anti-discrimination law compelling an artist to speak (or stay silent) violates an artist’s First Amendment right to freedom of speech.[8]

It is unclear why the Court declined to hear the free exercise clause arguments, but it could be that framing the issue around speech was more attractive to the Justices because the Court perceives speech to be more ideologically neutral than religion.[9] Ms. Waggoner, 303 Creative’s counsel, during oral arguments took advantage of this neutrality aspect by arguing in favor of values the opposition would likely support.[10] For example, Ms. Waggoner spoke about how the First Amendment protects a Black sculptor from being compelled to create a custom cross for an Aryan rally thereby protecting the artist from expressing racist views.[11]

Given the wide array of possible implications from a decision in this case, the Justices posed numerous hypotheticals, varying in degree of peculiarity, to test the limits of each side’s arguments. For example, the Court asked: Could a speech writer be compelled to write a press release for the Church of Scientology when the writer vehemently opposed the Church’s views?[12] Could a web designer refuse to make a wedding website for a disabled couple or an interracial couple?[13] Could a photography business refuse to take pictures of Black children with a white Santa Claus?[14] Could a Black Santa Claus be compelled to take a photo with a white child dressed in a KKK outfit?[15]The list of hypotheticals the Court posed were extensive, and the answers were not very satisfying with neither side articulating a clear limit to the application of the law or the free speech exclusion. Ultimately, it was troubling to consider that if an artist could refuse to serve a same-sex couple because providing services to the couple violated the artist’s convictions, then why couldn’t the artist refuse service to an interracial couple or a disabled couple? What is the limit? How are the Justices supposed to decide where to draw the line?

Another point of confusion was the distinction between status and content. Both parties agree that the First Amendment protects the content of a person’s speech, including speech involved in services.[16] This means a person cannot be compelled to write on a cake or create a web design with a message that the creator finds objectionable. However, the state can require the creator to sell to everyone regardless of their membership in a protected class.[17]Nevertheless, the distinction between content and status is illusory in the context of same-sex couples because the discrimination they face is inherently based on their status.[18] The artist’s refusal to design a website for a same-sex couple because the artist objects to celebrating same-sex marriage is based on the artist’s objection to the couple’s status as a same-sex couple. The artist does not oppose the message they are writing in general. For example, the artist would not oppose creating a website design saying, “Come celebrate our wedding with us on June 4, 2023” for an opposite-sex couple. However, the artist opposes the message for a same-sex couple because of the status of the couple requesting the design. The message and the status of the individuals requesting the message are thus inextricably intertwined. Similarly, as noted in the oral arguments, “[a] tax on wearing yarmulkes is a tax on Jews” because yarmulkes are inextricably intertwined with the Jewish culture and religion.[19] The fact that a non-Jewish person could wear a yarmulke or that not all Jewish people wear yarmulkes does not change the practical effect that a tax on yarmulkes targets a particular class.[20] In the context of sexual orientation, marriage is central and inextricable linked to a person’s identity, and a website design (the artist’s creation or message) is objectionable because of the status of the couple getting married.

Given the breadth of the possible implications in this case–—that a place of public accommodation could refuse service on any number of factors including race and sex—the Court will likely find some limiting factor to narrow the application of the free speech exclusion to public accommodation laws. One possible limitation could be that the exclusion only applies to artists when a reasonable person would understand that the artist is endorsing the message created for the customer.[21] For example, a website design could be considered the words of the couple requesting the design, not that of the web designer.[22] If the message created is not an endorsement, then it does not create a theological or moral burden on the designer, and therefore is not protected by the First Amendment.[23]

It is also possible that the Court will distinguish sexual orientation from race and sex.[24] The Court could decide that the constitutional protections of race are more concrete, and objections to race protections are not based on legitimate religious ideologies.[25] However, the distinction between sex and sexual orientation is more blurred since Bostock where the Court held that discrimination based on sexual orientation is inherently discrimination based on sex.[26] Therefore, the hypothetical that a photographer could refuse to take headshots for a woman because the photographer believes that women should not be in the corporate world could be a legitimate exercise of freedom of speech if the Court accepts Petitioner’s arguments.[27]

Lastly, the decision in this case could impact other areas of law including the interpretation of federal anti-discrimination legislation such as Title VII. There is no reason to believe that the analysis applied to this case could not apply to discrimination based on sexual orientation in the employment context as well.[28] While this decision could have repercussions on federal anti-discrimination laws, challenges to anti-discrimination laws grounded in First Amendment protections are occurring independently of 303 Creative. For example, after Bostock, it was unclear how Title VII would apply to religious employers that discriminated based on sexual orientation.[29] However, in a recent case, a court in the Fifth Circuit held that a church was exempt from Title VII and could discriminate based on sexual orientation.[30] As discrimination protections for different groups—especially same-sex couples— expand, this tension between the First Amendment and anti-discrimination laws at all levels of government will build and require courts to draw a line between these adverse interests.

It is unclear how the Court will decide this case, how it will limit the holding, how the holding can be applied to other areas of law, and whether challenges based on the free exercise clause will still be viable after this case. It seems likely that the Court will limit the application of the freedom of speech clause, since many Justices seemed hesitant to hold that freedom of speech would allow artists to discriminate based on race and sex. However, the Court seemed unsure with how to limit the application of the free speech clause and how to distinguish content from status to determine when a speech exclusion from anti-discrimination law could apply. While there is still much uncertainty, since the Court decided to hear this case after avoiding the freedom of speech issue in Masterpiece, the Court will likely decide the case on free speech grounds and provide guidance for courts wrestling with these issues moving forward.

[1] Amy Howe, Colorado Web Designer’s First Amendment Challenge Will Test the Scope of State Anti-Discrimination Laws, Scotus Blog (Dec. 2, 2022), https://www.scotusblog.com/2022/12/colorado-web-designers-first-amendment-supreme-court-lgbtq-anti-discrimination-laws/.

[2] Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719, 1724 (2018).

[3] Id. at 1725 (citing Colo. Rev. Stat. § 24–34–601(2)(a) (2017)).

[4] Id. at 1732.

[5] Howe, supra note 1.

[6] 303 Creative LLC v. Elenis, 6 F.4th 1160, 1169–70 (10th Cir. 2021), cert. granted in part, 142 S. Ct. 1106 (2022).

[7] 303 Creative LLC v. Elenis, 142 S. Ct. 1106 (2022).

[8] Id.

[9] See The Williams Institute at UCLA, LGBTQ at the Supreme Court: What to Expect in 303 Creative v. Elenis, at 56:00 (Dec. 13, 2022), https://williamsinstitute.law.ucla.edu/events/303-creative-webinar/.

[10] See Transcript of Oral Argument at 4, 25, 303 Creative v. Elenis, 142 S. Ct. 1106 (2022) (No. 21-476),

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-476_8n59.pdf.

[11] Id. at 4.

[12] Id. at 86.

[13] Id. at 13, 22–23.

[14] Id. at 26–27, 121–22.

[15] Id. at 75.

[16] See id. at 43, 58, 126–28.

[17] Id. at 115.

[18] Id. at 124 (“[R]efusing to serve for same-sex marriages is discrimination against . . . gays and lesbians because status and conduct is [sic] inextricably intertwined.”).

[19] Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993); see Transcript supra note 10 at 125.

[20] See Bray, 506 U.S. at 270.

[21] Strict Scrutiny, How the 303 Creative Case Threatens to Roll Back the 21st Century, Crooked Media, at 1:07:45–1:11:03 (Dec. 12, 2022); see Transcript, supra note 10, at 105–08.

[22] See Transcript, supra note 10 at 6–13; The Williams Institute at UCLA, supra note 9, at 42:20.

[23] See The Williams Institute at UCLA, supra note 9, at 43:07.

[24] See Id. at 32:00; Transcript, supra note 10, at 29.

[25] See Transcript, supra note 10, at 29, 80–81; cf. The Williams Institute at UCLA, supra note 9, at 21:58.

[26]Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731 (2020).

[27] See Transcript, supra note 10, at 122.

[28] See The Williams Institute at UCLA, supra note 9, at 22:53.

[29] Lawrence J. Del Rossi, Bostock Six Months Later and Open Questions About Title VII’s Religious Organization Exception, Faegre Drinker(Dec. 01, 2020), https://www.faegredrinker.com/en/insights/publications/2020/12/bostock-six-months-later-and-open-questions-about-title-viis-religious-organization-exception.

[30] Bear Creek Bible Church v. Equal Emp. Opportunity Comm’n, 571 F. Supp. 3d 571 (N.D. Tex. 2021).

*Elizabeth Wellhausen is a Managing Editor for JLI Vol. 41.

Noncompete Clauses and the Federal Trade Commission’s Proposal to Ban: Pros, Cons, and Questions on the FTC’s Authority

By jlieditors

**By Mike Fadden

Introduction:

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a new rule proposal that would result in a ban on noncompete clauses in the United States.^[1] This proposed rule specifically impacts noncompete clauses in the employer-employee relationship, which “block people from working for a competing employer, or starting a competing business, after their employment ends”.^[2] The proposed rule would require employers to 1) refrain from entering into any future noncompete agreements with employees; 2) rescind any existing noncompete agreements with employees prior to the compliance date; and 3) provide notice to employees who were subject to noncompete agreements of their invalidity within 45 days of the compliance date.^[3]

FTC Authority for Proposed Rule:

Some criticism of this proposed rule revolves around whether it is within the FTC’s authority. Given this criticism, it’s worth looking closely at the authority under which the FTC is acting .

Originally passed in 1914, the Federal Trade Commission Act states that “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”^[4] The statute instructs the Commissioner of the FTC to “prevent persons, partnerships and corporations” from using unfair practices in their businesses.^[5] To effectuate this, Congress empowered the Commission “to make rules and regulations for the purpose of carrying out the provisions of this subchapter.”^[6] While many agencies rely on the § 553 of the Administrative Procedure Act to undergo informal rulemaking, the FTC is subject to additional procedural requirements. In 1974, the DC Circuit Court heard National Petroleum Refiners Ass’n v. FTC and held that the FTC had the authority to promulgate legislative rules, and was not limited to adjudicatory proceedings only.^[7] Following this case, and with judicially recognized power in tow, the FTC went on to promulgate rules that regulated activities in various industries, and Congress responded by passing the Federal Trade Commission Improvement Act.^[8] This legislation requires that the FTC allow for a more formal “presentation of oral evidence and cross-examination on ‘disputed material facts’ when ‘necessary for fair determination of . . . the rulemaking proceeding.’”^[9] The result of this additional legislation is a process that looks more like formal APA rulemaking as opposed to what has become standard notice-and-comment rulemaking.^[10]

FTC Reasoning for the Proposed Rule:

In the 216-page Notice for Proposed Rulemaking published by the FTC, the Commission lays out several reasons for the ban on noncompete clauses, relying heavily on empirical data. The reasoning can be classified into three main arguments in support of the noncompete ban.

First, the FTC cites numerous studies supporting that noncompete clauses create downward pressure on employee wages. The commission was particularly convinced by one of these studies which spanned 23 years and concluded that the elimination of noncompete clauses could result in an increase in employee wages by 3.3%-13.9%.^[11] The Commission cites to five additional studies which analyze the impact of noncompete agreements in various contexts, including within specific industries, specific geographic regions and in the context of executive-level positions.^[12] Based on these various empirical reports, the Commission concludes the cumulative impact of a ban on noncompete agreements would be an increase to earnings across the United States by $250 – $296 billion on an annual basis.^[13]

Second, the FTC considers the existence of noncompete clauses to have a “stifling” effect on new business and new ideas.^[14] The FTC once again looked at numerous studies, but since innovation is not a metric which can be quantified, the studies looked at the impact of noncompete clauses on various indicators of innovation. These indicators include data such as the value of patents or the number of patents stemming from venture capital.^[15] The studies suggest that when noncompete clauses are unenforceable,^[16] the value of patents increase by 31%.^[17] In another study, researchers found that when noncompete clauses are enforceable, the number of venture-backed patents reduced by 6.6%.^[18] The FTC was also concerned by three different studies suggesting that enforcing noncompete clauses resulted in a decrease in new business formation, reduced entrepreneurship, or a reduction in both.^[19]

Third, the FTC expressed its concern over the bargaining power that employers hold relative to employees, which can therefore induce the signing of noncompete clauses.^[20] While the imbalance in employer-employee bargaining power is not unique to noncompete clauses, the Commission considers two factors that intensify this imbalance in the context of these clauses: 1) employers have greater experience in negotiating employment agreements due to the higher volume of employment agreements they enter relative to employees,^[21] and 2) employees rarely engage legal counsel in reviewing an employment agreement, whereas employers are often assisted by counsel in the drafting of employment agreements.^[22]

Noncompete Justifications:

Unsurprisingly, employers prefer noncompete agreements and argue the enforceability of these agreements are important to their business. Central to their argument is the need for protection from high employee turnover which, in turn, allows for higher investment in employee training.^[23] In a 2019 study, researchers observed that enforceable noncompete clauses result in a 14.7% increase in likelihood to receive training .^[24] In another study of publicly traded companies, one researcher observed that the value of publicly traded companies increased by 9% when utilizing noncompete agreements.^[25] Ultimately, employers argue that without noncompete clauses being enforceable, they will be less incentivized to provide employee training because of the risk of turnover.

Another argument in support of noncompete agreements is the concern of trade secrets being disseminated by former employees. While often cited by proponents of noncompete agreements, there is conflicting evidence on whether the concern is justified.^[26]

FTC Response to Justifications:

The FTC is aware of these justifications and counters by suggesting the use of alternative methods which would be less harmful to employees and consumers.^[27] In the NPRM, the FTC provides three alternative routes to protect an employer’s interests. First, in the mind of the FTC, existing trade secret law provides adequate protection against the potential loss of trade secrets in the absence of noncompete agreements.^[28] Second, employers can utilize non-disclosure agreements or confidentiality agreements with employees following the end of an employer-employee relationship.^[29] Third, employers could insulate themselves from risk of losing an employee following expensive training by utilizing employment agreements with a specific length.^[30]

Somewhat cheekily, the FTC also adds that to retain these employees following training investments (and in lieu of noncompete clauses), employers could insulate themselves from turnover risk by paying higher wages, providing better work-life balance, and general improvements to working conditions – an expensive alternative to low-cost noncompetes that employers are not likely to embrace.^[31]

Equitable Impact of Noncompete Bans:

In its NPRM, the FTC lays out numerous arguments in support of its proposed ban on noncompete clauses given the economic impact that would result. Buried within the lengthy description of various studies, the FTC cited evidence suggesting this proposed rule would narrow the racial and gender wage gaps in the United States. According to cited study, a ban on noncompete agreements nationwide would close the gap by 3.6% – 9.1%.^[32] It also cites research suggesting that when noncompete agreements are enforceable, the negative effect on entrepreneurship is felt more by women compared to men.^[33]

Legal Vulnerabilities:

The FTC will almost certainly face challenges to their authority to promulgate this rule, particularly considering the recent Supreme Court decision in West Virginia v. EPA, where the Court applied the major questions doctrine.^[34] In writing for the majority, Chief Justice Roberts states that when an agency asserts a statutorily conferred power over issues of “economic and political significance”, the Court has “reason to hesitate before concluding that Congress meant to confer such authority”.^[35] Chief Justice Roberts’ use of the major questions doctrine has left many looking to pull out a test to apply to future cases. In a post on the Yale Journal on Regulation, Professor Kirstin Hickman pulled such a standard from Justice Roberts’ opinion.

“…[W]hether the major questions doctrine applies depends upon (1) “the ‘history and the breadth of the authority that [the agency] has asserted,’” (2) “the ‘economic and political significance’ of that assertion,” and (3) the extent to which the agency is relying on “‘modest words,’ ‘vague terms,’ or ‘subtle device[s]’” rather than more direct delegations from Congress.”

While it’s not clear whether the Supreme Court would use the major questions doctrine to strike down the FTC’s proposed rule on noncompete agreements, at least one FTC commissioner is concerned about the statutorily shaky ground upon which the proposed rule stands.^[36]

Conclusion:

The FTC’s proposed rule to impose ban on the use of noncompete clauses in the employer-employee context has the potential for numerous economic benefits for employees in the United States. Among these benefits includes progress toward narrowing the racial and gender wage gap divide. While proponents of noncompete clauses argue for their necessity to protect their investments in training labor and trade secrets, there seem to be potential alternatives with less harmful impacts on employees and consumers. Despite the benefits this rule may result in, there exists a question over whether the FTC is exceeding their statutory authority, particularly given the application of the major questions doctrine in West Virginia v. EPA.

Mike Fadden is a Staff Member for Volume 41 of the Minnesota Journal of Law & Inequality

[1] Fed. Trade Comm’n, Non-Compete Rulemaking, https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking.

[2] Fed. Trade Comm’n, FACT SHEET: FTC Proposes Rule to Ban Noncompete Clauses, Which Hurt Workers and Harm Competition, https://www.ftc.gov/system/files/ftc_gov/pdf/noncompete_nprm_fact_sheet.pdf.

[3] Id at §910.2.

[4] 15 U.S.C. § 45(a)(1).

[5] 15 U.S.C. § 45(a)(2).

[6] 15 U.S.C. § 46(g).

[7] National Petroleum Refiners Ass’n v. FTC, 482 F.2d 672 (D.C. Cir., 1974).

[8] Kristin E. Hickman & Richard J. Pierce, Jr., Federal Administrative Law, 513-14, (West Academic, 3d ed.) (2019).

[9] Id. See also, 15 U.S.C. 57(a)(e)(3)(B).

[10] Supra note 8.

[11] Supra note 1 at 20. (The Commission’s NPRM cites to Matthew S. Johnson, Kurt Lavetti, & Michael Lipsitz, The Labor Market Effects of Legal Restrictions on Worker Mobility 2 (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3455381.).

[12] Supra note 1 at 20.

[13] Supra note 2 at 1.

[14] Id.

[15] Supra note 1 at 42.

[16] Many states have passed their own legislation on the enforceability of noncompete clauses providing researchers with the opportunity to compare states with high enforceability to those states with low enforceability of noncompete clauses. The Commission notes that this difference in enforceability from state to state has resulted in an increase of reliable data in recent years.

[17] Supra note 1 at 42.

[18] Id.

[19] Id at 37.

[20] Id at 81.

[21] Employee agreements are usually negotiated when an employee is hired for a new position. It follows that employers tend to go through the process of hiring new employees more frequently than an individual changes jobs and is faced with negotiating a new employment agreement.

[22] Id at 83.

[23] Id at 45.

[24] Evan Starr et al., Consider This: Training, Wages, and the Enforceability of Covenants Not to Compete, 72 I.L.R. Rev. 783, 797 (2019).

[25] Kenneth A. Younge & Matt Marx, The value of employee retention: evidence from a natural experiment, 25 J. Econ. & Mgmt. Strategy 652 (2016).

[26] Supra note 1 at 46.

[27] Id at 91.

[28] Id at 94.

[29] Id at 98.

[30] Id at 99.

[31] Id at 100.

[32] Id at 195.

[33] Id.

[34] West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587 (2022).

[35] Id at 2595.

[36] Fed Trade Comm’n, Dissenting Statement of Commissioner Christine S. Wilson Regarding the Notice of Proposed Rulemaking for the Non-Compete Clause Rule, https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/dissenting-statement-commissioner-christine-s-wilson-concerning-notice-proposed-rulemaking-non

Laufer Gives ADA Testers a Second Green Light

By jlieditors

By Matthew Schmitz

***Disability communities differ on whether they prefer person-first (“person with a disability”) or identity-first (“disabled person”) language.^[1] Here, I have opted for identity-first language but want to acknowledge that each member of the disability community may have a different preference.

The First Circuit bucked the trend of its sister circuits on a crucial question of standing to bring claims connected to the Americans with Disabilities Act (ADA) on October 5th, 2022.^[2] The decision to extend standing to website testers, under the Reservation Rule, brings the First Circuit into harmony with the Eleventh Circuit but leaves it at odds with the Second, Fifth, Tenth, and D.C. Circuits.^[3] The circuit court and Supreme Court responses to this division going forward will have serious implications for the legal efforts to promote ADA compliance and access for disabled people.

The Circuit Split on Tester Standing

Congress, while crafting the ADA to combat discrimination in public spaces and ensure reasonable levels of accommodation for disabled individuals, vested the ADA’s regulatory authority in the Attorney General.^[4] Among the many regulations the Attorney General has promulgated since receiving that authority is one commonly referred to as the Reservation Rule.^[5] This rule requires businesses that provide lodging to present enough information on their reservation services to allow disabled people to determine if a room meets their needs.^[6] The standard is meant to ensure that disabled people can reserve lodging as efficiently and conveniently as all members of society.^[7]

One result of this rule has been the involvement of ADA testers, who push for accommodation by bringing federal suits across the country concerning the Reservation Rule.^[8] These testers face a hurdle, however, when opposing parties challenge their Article III standing.^[9] Courts faced with these challenges struggle especially with whether these testers have suffered an “injury in fact” sufficient to give them a live case and controversy under the Constitution.^[10] These injuries, following the Supreme Court’s decision in Spokeo, Inc. v. Robins, can be intangible but must be more than a mere violation of statutory procedure.^[11]

Building on Spokeo, the most recent Supreme Court opinion related to tester standing came through TransUnion LLC v. Ramirez, which involved a class action under the Fair Credit Reporting Act.^[12] The TransUnion court applied the Spokeo standard and found that the plaintiffs failed to allege more than a procedural violation.^[13] The Court did not stop there, however. It also cited the plaintiffs’ failure to point to “downstream consequences” or “adverse effects” that resulted from TransUnion’s denial of information required under the statute.^[14] This expanded the Court’s analysis beyond the previous concrete harm standard from Spokeo and arguably reflects a larger trend against tester standing.^[15]

The Second, Tenth, and Fifth Circuits also perpetuated this trend when they subsequently applied the downstream consequences and adverse effects considerations from TransUnion to deny standing for website testers in similar circumstances to Laufer.^[16] Each circuit relied on slightly different grounds. In Harty v. W. Point Realty, Inc., the Second Circuit focused on the plaintiff’s lack of interest in putting the information to use.^[17] The Tenth Circuit, in another case brought by Laufer, pointed to the absence of the kind of misrepresentation that has substantiated concrete injury in previous similar cases.^[18] The court also added that a violation of statutory right is not enough for a concrete harm.^[19] Finally, the Fifth Circuit, in Laufer v. Mann Hosp., LLC, held that Laufer was not able to prove the information had enough relevance to turn information denial into an injury.^[20]

The Laufer Court’s Response

The First Circuit, in Laufer, was not persuaded by the logic of previous decisions from other circuits.^[21] Instead, it relied on the Supreme Court’s precedent in Havens Realty Corp. v. Coleman, which concerned a Fair Housing Act claim brought by a tester working to eliminate racial steering.^[22] Looking at the injury in both Havens Realty and Laufer, the court struggled to find a difference between a Black tester being denied truthful information about long-term renting availability and a disabled tester being denied information about short-term renting availability.^[23] The court stressed that the similarities between Havens Realty and Laufer should push circuit courts to apply the Havens Realty standard until the Supreme Court holds otherwise.^[24]

The Supreme Court’s holding in Federal Election Commission v. Akins also supports the First Circuit’s understanding that information denial can be a sufficient concrete injury for purposes of standing.^[25] In Akins, the Court found that statutorily required information about donor lists for political organizations would likely be useful for the plaintiffs, meaning the denial of that information was equivalent to an injury.^[26] An additional Supreme Court holding, surrounding the Federal Advisory Committee Act, also supports this concept that bare denial of information access can create enough harm for Article III standing.^[27]

Other circuit courts see things differently. In the aforementioned tester standing cases, the Second and Tenth Circuit distinguished from Havens Realty by reasoning (1) that the simple status of being a tester does not create sufficient harm, (2) that ADA tester plaintiffs were not victims of misrepresentation, and (3) that there are no downstream consequences for ADA testers.^[28] The First Circuit found this logic unpersuasive, but also took pains to note that, even under the stricter adverse effects standard pulled from TransUnion, Laufer asserted a sufficient injury in this case.^[29] The “feelings of frustration, humiliation, and second-class citizenry” that Laufer experienced are, the court held, downstream consequences and adverse effects as the federal courts have applied that standard.^[30]

The First Circuit concluded its analysis by addressing the final two concerns raised by the defendant in Acheson Hotels: (1) particularized injury and (2) standing relative to injunctions.^[31] With respect to particularization, Acheson argued that Laufer based her claim on a generalized injury too large to meet the standard set by Lujan v. Defenders of Wildlife.^[32] In response, the court drew a careful distinction between Laufer, as a disabled person, and someone who only witnessed an act of discrimination.^[33] The court, in that context, found Laufer’s situation particularized enough and implied that the witness’s situation would not be.^[34]

With respect to standing for injunctive relief, Acheson argued that Laufer did not face the required risk of future injury, since it had taken steps to remedy the reservation concerns.^[35] Answering that concern, the court held that Laufer’s intent to return to both Acheson’s website and its third-party partners, in accordance with her thorough testing procedures, was enough.^[36] This is especially true, the court pointed out, since Acheson had not yet addressed the existing issues with its third party platforms, even as it corrected noncompliance in its own site.^[37]

Continuing to Push for ADA Compliance

The concerns expressed by the parties in Laufer are far from unique to this case. The practice of ADA testing has generally been met with some pushback by courts, who mention the lack of rigor in their complaints, the potential insincerity of claimants, and the flood of claims that testing creates.^[38] Nevertheless, people knowledgeable in ADA compliance efforts recognize the crucial role that testers can play in promoting equality for disabled people.^[39] Because litigation is the only forum for repairing non-accommodation under the ADA—and because of the serious frustration that inaccessibility can produce for disabled people—the potentially troubling qualities of some testers and their attorneys may be necessary to fix ongoing compliance issues.^[40] This is even more true considering businesses have been on notice for over a decade that courts are willing and able to enforce digital accessibility.^[41]

Laufer may still offer another key opportunity for developing these compliance efforts if the Supreme Court chooses to issue a writ of certiorari before Acheson’s requested January 18, 2023 deadline.^[42] The reach of the First Circuit’s decision and any potential Supreme Court clarification could also influence similar standing concerns in data privacy and security, credit reporting, and informational statutory rights violations in general.^[43] In the meantime, plaintiffs and businesses alike may struggle to understand the potential reach of litigation on ADA website compliance.

Additionally, plaintiffs like Laufer may continue to bring their claims in friendly circuits whenever possible, making Laufer an important tool in their efforts to bring website reservation services in line with Department of Justice regulations and the text of the ADA itself.^[44] The fight over tester standing in ADA compliance cases is far from over, and by doubling the number of friendly circuits through which Laufer and her peers can continue to push the issue, Laufer will play a key role in that ongoing struggle.

**Matthew Schmitz is a Staff Member for the Journal of Law and Inequality

[1] Jevon Okundaye, Ask a Self-Advocate: The Pros and Cons of Person-First and Identity-First Language, MASSACHUSETTS ADVOCATES FOR CHILDREN (Apr. 23, 2021), https://www.massadvocates.org/news/ask-a-self-advocate-the-pros-and-cons-of-person-first-and-identity-first-language.

[2] Laufer v. Acheson Hotels, LLC, 50 F.4th 259, 263 (1st Cir. 2022).

[3] Bernie Pazanowski, Circuit Splits Reported in U.S. Law Week—October 2022, Bloomberg L. News (Nov. 1, 2022), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/us-law-week/X2121QSO000000?bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9wcm9kdWN0L2JsYXcvc2VhcmNoL3Jlc3VsdHMvMzA3MjVhNGYxNzVkMDQ3MmZkZjM4ODhiZDE2OGNjMjgiXV0–436475ddb03965053ba03db6177fec2f752d26fc&bna_news_filter=us-law-week&criteria_id=30725a4f175d0472fdf3888bd168cc28&search32=u0qIiHFNFvDD17_r3nWqhg%3D%3DQJ1xwqmewFmZAO6rPgP_zoLcxHwI0hhgrf_NN2BxGo0Iugx1_cJR7hAqM4fpGJv5aDoGRmpcKIH0mNYrNX4-6tog1pImIjfHGyVpx_B79cYkYvOwTwN1u6nDEr0dThD1.

[4] 42 U.S.C. § 12186(b) (2022).

[5] Laufer v. Acheson Hotels, LLC, 50 F.4th at 264–65 (citing 28 C.F.R. § 36.302(e) (2022)).

[6] 28 C.F.R. § 36.302(e)(1)(ii) (2022).

[7] Laufer v. Acheson Hotels, LLC, 50 F.4th at 264–65 (citing 28 C.F.R. pt. 36, app. A (2010), Guidance on Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities.).

[8] Laufer v. Acheson Hotels, LLC, 50 F.4th at 265.

[9] See, e.g., Id.

[10] Id. at 266.

[11] Id. at 267–68 (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)).

[12] 141 S.Ct. 2190 (2021).

[13] TransUnion LLC, 141 S.Ct. at 2214.

[14] Id.

[15] Elizabeth Bowersox, Tenth Circuit Kills ‘Tester Standing’ in Accessibility Lawsuits, McAfee & Taft EmployerLINC (Feb. 9, 2022), https://www.mcafeetaft.com/tenth-circuit-kills-tester-standing-in-accessibility-lawsuits/.

[16] Laufer v. Acheson Hotels, LLC, 50 F.4th at 271 (citing Harty v. W. Point Realty, Inc., 28 F.4th 435, 444 (2d Cir. 2022); Laufer v. Looper, 22 F.4th 871, 879–81, 883 (10th Cir. 2022); Laufer v. Mann Hosp., LLC, 996 F.3d 269, 273 (5th Cir. 2021)).

[17] Harty, 28 F.4th at 444.

[18] Laufer v. Looper, 22 F.4th at 878–80.

[19]Id.

[20] Laufer v. Mann Hosp., LLC, 996 F.3d at 273.

[21] Laufer v. Acheson Hotels, LLC, 50 F.4th at 272–73.

[22] Id. at 268–69 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–74 (1982)).

[23] Id. at 269.

[24] Id. at 271.

[25] Id. at 269–70 (citing Fed. Election Comm’n v. Akins, 524 U.S. 11, 20–21 (1998)).

[26] Id. at 270.

[27] Pub. Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 449–50 (1989).

[28] Laufer v. Acheson Hotels, LLC, 50 F.4th at 272–74.

[29] Id. at 274–75.

[30] Id. at 275.

[31] Id. at 276.

[32] Id. at 276 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 n.1 (1992)).

[33] Id.

[34] Id.

[35] Id. at 277.

[36] Id.

[37] Id.

[38] Sheri Byrne-Haber, Who Tests the ADA Testers? Medium (July 9, 2021), https://sheribyrnehaber.medium.com/who-tests-the-ada-testers-dcb9db8d3749.

[39] Id.

[40] Id.

[41] Id.

[42] Acheson Hotels, LLC v. Laufer, SCOTUSblog (Dec. 21, 2022), https://www.supremecourt.gov/docket/docketfiles/html/public/22-429.html. Several parties have also filed amici curiae briefs that explore various angles of this issue.

[43] Melanie A. Conroy, First Circuit Court of Appeals Rules Website Tester Has Standing for ‘Informational Injury’, Deepens Circuit Divide, Nat’l L. Rev. (Oct. 28, 2022), https://www.natlawreview.com/article/first-circuit-court-appeals-rules-website-tester-has-standing-informational-injury.

[44] Bowersox, supra note 15.

The Forgotten Child Bride in the United States

By jlieditors

By Rachel Emendorfer*

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.”^[1] This statement by Justice Kennedy in Obergefell v. Hodges captures how cherished the concept of marriage is by many in the United States. While marriage can be an expression of love and devotion, it can also be used to wield control over another human being. This potential for abuse of control is especially concerning when in child marriage—a marriage where one of the parties is under eighteen years old. Child marriage can seem like a distant problem, but this false belief has, unfortunately, led many to have forgotten the child brides in the United States.

The U.S. reports shocking numbers of child marriages occurring each year, with almost 300,000 children being married between 2000 and 2018.^[2] Unchained At Last, a child marriage advocacy group, estimates that 86% of these children are girls and when girls married, they are marrying someone with an average spousal age difference of four years.^[3] State legislatures forgetting, or simply ignoring, the child brides in the United States, paired with a lack of judicial guidance has resulted in a legal framework that leaves many children unprotected from the harms of child marriage in the United States.

The Supreme Court has repeatedly held that marriage is a fundamental right, banning limits on interracial marriage in Loving v. Virginia and striking down laws prohibiting same-sex marriage in Obergefell v. Hodges.^[4] However, the Supreme Court has yet to deal directly with child marriage, leaving it to the states to implement child marriage laws. States have taken varying approaches to legislate child marriage. Currently, only six states outright ban child marriage by setting the minimum age to marry at eighteen.^[5] Twenty states have no minimum age for marriage, only requiring either a parental or judicial waiver.^[6]

Prior to 2018, children in Missouri were allowed to be married at fifteen years old, without any age limitations for whom they were being married to.^[7] During this time, Missouri was considered a “destination state” for child marriage, with people traveling from as far as Oregon to participate in a child marriage.^[8] In 2018, the Missouri legislature raised the minimum marrying age to sixteen and now bans people over the age of twenty-one from marrying anyone under eighteen.^[9] Another destination state for child marriage, North Carolina, passed legislation in 2021 raising the minimum age limit from fourteen to sixteen.^[10] The concept of “destination states” for performing child marriages are examples of what happens when there is no centralized legal framework guiding state’s legislation for child marriages.

The impact of these marriages stems far beyond the moral dilemma of imposing marriage on a minor who cannot legally consent. Early marriages have led to immense consequences for minors’ mental and physical health, educational attainment, and economic independence.^[11] Marrying at a younger age often means becoming sexually active at a younger age, and therefore implicates pregnancy before a person’s body is developmentally ready to endure pregnancy.^[12] This is especially concerning with the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Org., where the Court overturned precedent and held that there is no constitutional right to abortion.^[13]

Another legislative problem common with child marriage is the ability to circumvent statutory rape cases by being married to the victim.^[14] Statutory rape, or sexual abuse of a minor, applies when a person knowingly engages in a sexual act with a person below the age of consent.^[15] States can place a defense within their statutory rape provisions by clarifying that sexual assault does not occur if the victim is the perpetrator’s spouse.^[16] One reason attributed to these laws is a cost-savings approach by the state.^[17] By allowing a marriage exception for statutory rape, many states can avoid not only the cost of prosecution, but also avoid the cost of holding the perpetrator in prison.^[18]

While the likely solution to end child marriage in the United States is for every state to enact legislation that sets the minimum marriage age at eighteen, it is still possible for federal legislators to push the issue. There is one bill pending in Congress that would require the Department of Health and Human Services to study and issue a report on the relationship between state minimum marriage age and the number of marriages involving a child under that age.^[19] While this bill would not create a federal ban on child marriage, it would draw attention to the prevalence of child marriages occuring in each state. This could potentially force state legislatures to enact legislation raising their minimum age for marriage.

The current state of child marriage laws in the United States, along with the decision in Dobbs, means young women across the country are facing major legal obstacles to having autonomy over their personal decisions. These problems cannot be solved by legislators assuming the issue of child marriage is not happening within their country. Both federal and state legislators need to understand the consequences of failing to eliminate child marriage and enact legislation that will protect the safety and independence of children in the United States.

[1] Obergefell v. Hodges, 576 U.S. 644, 681 (2015).

[2] Child Marriage in the United States, EQUALITY NOW (last visited Oct. 10, 2022), https://www.equalitynow.org/learn_more_child_marriage_us/#:~:text=Child%20marriage%20is%20currently%20legal,a%20parental%20or%20judicial%20waiver.

[3] United States’ Child Marriage Problem, UNCHAINED AT LAST, (last visited Nov. 15, 2022), https://www.unchainedatlast.org/united-states-child-marriage-problem-study-findings-april-2021/.

[4] Marie Johnson-Dahl, Sixteen Candles On My Wedding Cake: Implications of Banning Child Marriage in America, 2020 U. Ill L. Rev. 1045, 1050-51 (2020).

[5] Child Marriage in the United States, supra note 2.

[6] Id.

[7] Julia Bennett, The Harsh Truth of Child Marriage in the US, Berkeley J. GENDER, L. & JUST. (Nov. 16, 2021), https://genderlawjustice.org/under-deconstruction/the-harsh-truth-of-child-marriage-in-the-us#:~:text=Meanwhile%2C%20Missouri%20is%20known%20as,to%20anyone%20of%20any%20age.

[8] Id.

[9] Id.

[10] North Carolina Is Child Bride Destination; Bill Could End It, U.S. NEWS (Aug. 17, 2021), https://www.usnews.com/news/politics/articles/2021-08-15/north-carolina-is-child-bride-destination-bill-could-end-it.

[11] Johnson-Dahl, supra note 4, at 1066-8.

[12] Id. at 1066.

[13] See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022) (holding that the right to an abortion is not a constitutional right).

[14] Amber Plumlee, Don’t Put a Ring on It: Abolishing the Marital Defense to Statutory Rape, 41 WOMEN’S RIGHTS 95, 103 (2019).

[15] Id. at 100-01.

[16] Id. at 104; see Colo. Rev. Stat. § 18-3-402(d) (2020).

[17] Id. at 107.

[18] Id.

[19] Bailey Wharton, Why Has the United States Not Banned Child Marriage?, U. Cincinnati L. R. (Jan. 10, 2022); see Congressional Research Service Summary of H.R. 1606, Congress.gov, https://www.congress.gov/bill/117th-congress/house-bill/1606 (last visited Nov. 16, 2022).

* Rachel Emendorfer, Staff Member of Journal of Law & Inequality Vol. 41 and J.D. Candidate, UMN Law School Class of 2024

What’s Brewing with Bruen?

By jlieditors

By Kenneth Cooper*

On June 23, 2022, the United States Supreme Court vitiated a century-old licensing scheme regulating firearms in New York.[1] While the impact from New York State Rifle & Pistol Association v. Bruen was felt immediately by those pursuing gun control measures to reduce gun violence,[2] its shockwaves were felt also in criminal law, reviving a question of whether the benefit to public safety provided by gun control outweighed the harm created by its racially discriminatory enforcement.

Background on Bruen

Prior to Bruen, New York’s gun licensing law, also referred to as the “Sullivan Law”[3] required applicants seeking to carry concealed firearms to show “proper cause” to be issued an unrestricted license (i.e., the license to carry a concealed firearm).[4] Courts had previously interpreted proper cause to require a showing of a special need for self-defense “distinguishable from that of the general community or of persons engaged in the same profession.”[5]

Enter the New York State Rifle & Pistol Association. The association, on behalf of two of its members, brought an action against the superintendent of the New York State Police and the local state district court judge who oversees licensing applications after the two members were denied to have their already granted firearms licenses be “unrestricted.”[6] The Plaintiff brought a 42 U.S.C. § 1983 claim alleging the Second and Fourth Amendment rights of its members were deprived.[7] The U.S. District Court for the District of Northern District of New York dismissed Plaintiff’s claim, and the Second Circuit Court of Appeals affirmed. Both courts relied on Second Circuit precedent upholding the proper-cause standard.[8] The U.S. Supreme Court took issue with the Second Circuit’s analysis which consisted first of a consideration of the historical interpretation of firearm regulation and second of an application of intermediate or strict scrutiny, to be inconsistent with previous cases which expressly reject the application of intermediate or strict scrutiny.[9] Then, applying the historical analysis, the Court found the respondents failed to “identify an American tradition justifying New York’s proper-cause requirement.”[10] Accordingly, the Court found the licensing regulations to violate the Second and Fourteenth Amendments.[11]

Impact on Criminal Justice

Bruen’s aftermath, through the lens of the Second Amendment and gun control, is relatively clear: it expands previous Second Amendment case law (e.g., District of Columbia v. Heller) and reads the Second and Fourteenth Amendments to protect the right to carry firearms outside of the home.[12] Moreover, from the standpoint of civil liberties and analyzing government restrictions thereof, Bruen adds an interesting nuance to Second Amendment cases, rejecting the analysis using intermediate and strict scrutiny and instead favoring a historical analysis of the Second Amendment.[13]Its impact on criminal law, on the other hand, is not immediately apparent. However, throughout Bruen’s litigation, the New York State Rifle & Pistol Association received support from an amicus brief filed by unexpected parties who shed light on Bruen’s impact on criminal law: public defenders.[14] In the Brief for Black Attorneys of Legal Aid, the Bronx Defenders, and Brooklyn Defenders Services, the amicus underscore Bruen’s potential impact through the lens of criminal law and emphasizes the reevaluation that must be held following the invalidation of the licensing law.

The public defenders’ argument is twofold: that the “licensing regime criminalizes the exercise of the Second Amendment,” and that as a result, their clients are often prosecuted for exercising their rights.[15] The brief goes to great detail in highlighting the severity of the statutes criminalizing the unlicensed possession of a firearm. For example, N.Y. Penal Law § 265.15(4) makes the unlicensed possession of a firearm “presumptive evidence to use the same unlawfully against another.” As a result, unlicensed possession “is legally sufficient to establish” second-degree criminal possession of a weapon, a violent felony.[16] What’s more, the brief demonstrates the disparity in both the enforcement and the prosecution of the licensing regime. For example, the New York Police Department grants a special certification to former officers to make it easier to obtain a license.[17] Additionally, statutes expressly waive licensing application fees for former police officers.[18] Not only is there a disparity in how difficult it is to obtain a license, the brief argues, but disparities also exist in the enforcement against and prosecution of unlicensed possession. Looking at the NYPD historic arrests data for the arrests made for gun possession in 2020, “96% of arrests . . . were of Black or Latino people.”[19] Out of the prosecution of the same charge (criminal possession of a weapon in the second degree), “80% of people in New York who are arraigned are Black while 5% are non-Hispanic white.”[20] In short, the public defenders assert that the “NYPD unilaterally decides whose firearm possession is an unlicensed crime and whose is a licensed right.”[21]

With this in mind, the Court’s opinion in Bruen directly relates to preventing racially discriminatory enforcement by targeting the law that was enforced in the first place. Perhaps this impact could lead those in authority to rethink the amount of discretion given to law enforcement, taking more steps to create fair enforcement of the law and not one based on unilateral whims.

Fight Against Gun Violence Continues

Shortly after the Bruen opinion was published, New York passed the Concealed Carry Improvement Act, enhancing storage requirements, setting a minimum age requirement, and creating zones which prohibit the carrying of firearms.[22] Moreover, the new legislation has eliminated the “proper cause” requirement.[23] Even so, Bruen opened the proverbial floodgates against seemingly any effort towards gun control. At the beginning of October, a federal judge in the Northern District of New York blocked the Concealed Carry Improvement Act’s regulation of “sensitive” zones which do not permit firearms, including museums, theaters, stadiums, and Times Square.[24] Shortly thereafter, a federal judge in the Western District of New York blocked the Act’s ability to regulate firearms in places of worship.[25]

The amicus brief by the New York Defenders challenges the tension between eliminating racial disparities in prosecution and enforcement of the law and reducing gun violence. These objectives obviously are not mutually exclusive. The clear fact that they are not mutually exclusive illustrates a likely pitfall of any subsequent legislation: the discretion behind the enforcement and prosecution of firearm possession. Though enforcement and prosecutorial discretion may be necessary for the practice of law and for public safety, prosecutorial discretion has as much potential to harm as it does to help if left unchecked. Given that the central thesis of the amicus brief calls attention to the flawed enforcement practices, there is a notable difference between the position of the amicus and the position the aforementioned federal courts have taken. Namely, the amicus brief targeted the Sullivan Law because of the way it regulated who can carry firearms; whereas the two opinions which came out of the federal courts in New York prevent any regulation of where firearms can be carried, rather than who can carry them.

[1] New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111 (2022).

[2] Press Release, New York Att’y Gen. Office, Attorney General James Successfully Defends New York’s Gun Control Laws, https://ag.ny.gov/press-release/2022/attorney-general-james-successfully-defends-new-yorks-gun-control-laws.

[3] Bruen, 142 S.Ct. at 2122.

[4] N.Y. Penal Law § 400.00(2) (2021).

[5] E.g., In re Klenosky, 428 N.Y.S.2d 256, 257 (1980).

[6] Bruen, 142 S.Ct. at 2125.

[7] Id.

[8] Id.

[9] Id. at 2129–30 (citing District of Columbia v. Heller, 554 U.S. 570 (2008)).

[10] Id. at 2138, 2156.

[11] Id. at 2156.

[12] Id. at 2135.

[13] Id. at 2131.

[14] Brief for Black Attorneys of Legal Aid, the Bronx Defenders, Brooklyn Defender Services, et al., as Amici Curiae in New York State Rifle and Pistol Association, Inc. v. Bruens, 142 S.Ct. 2111 (2022) [hereinafter “Brief”].

[15] Id. at 6, 15.

[16] Id. at 7–8.

[17] Id. at 11.

[18] Id. at 11; N.Y. Penal Law § 400.00(14).

[19] Brief at 15.

[20] Id. at 15.

[21] Id. at 12.

[22] Press Release, New York Governor’s Office, Governor Hochul Announces New Concealed Carry Laws Passed in Response to Reckless Supreme Court Decision Take Effect September 1, 2022, https://www.governor.ny.gov/news/governor-hochul-announces-new-concealed-carry-laws-passed-response-reckless-supreme-court.

[23] People v. Rodriguez, 171 N.Y.S.3d 802, 806 n.6 (2022).

[24] Jonah E. Bromwich, Federal Judge Blocks N.Y. Gun Law, Finding Much of It Unconstitutional, N.Y. Times (Oct. 6, 2022).

[25] Hurubie Meko, New York’s Gun Law, Already in Jeopardy, Is Dealt Another Blow, N.Y. Times (Oct. 21, 2022).

*Kenneth Cooper, J.D. Candidate, University of Minnesota Law School Class of 2023, JLI Vol. 41 Managing Editor

Emergency Intellectual Property Reform: COVID-19 and Vaccines

By jlieditors

By: Heather Chang*

The healthcare industry, like others, relies on patent and trade secret law to protect sensitive and profitable information. More broadly, the industry is a prime example of the harm and inequity that can be caused by broad intellectual property (IP) protections. These protections negatively impact public welfare (in the United States and globally), as monopolies held by pharmaceutical companies “delayed entry of lower-cost generic drugs”¹ and the “[c]ommodification of essential medicines, such as vaccines, pushes poorer countries into extreme debt and reproduces national inequalities that discriminate against marginalized groups.”² In the context of COVID-19, where vaccines and COVID-related inventions qualify for patent protection, pharmaceutical companies may hold a 20-year, protected monopoly for their work,³ and where information constitutes a trade secret,⁴ this monopoly may theoretically last indefinitely.⁵ As a result of these IP protections, other companies and countries must bargain for and pay licensing fees for this information.

Recognizing the deeply inequitable and dangerous consequences of vast IP protections for COVID-19 vaccines on lower-income countries, in May of 2021 the Biden administration announced it would support waiving IP protections related to COVID-19 vaccines under the World Trade Organization’s Agreement on Trade-Related Intellectual Property Rights.⁶ While many of the details of the waiver are still in process, the current proposal allows for the use of “‘patented subject matter required for the production and supply of COVID-19 vaccines without the consent of the right holder to the extent necessary to address the COVID-19 pandemic.’”⁷ It further waives IP rights for “ingredients and processes necessary for COVID-19 vaccine manufacture, a move aimed at granting critical know-how to many countries lacking expertise, especially for advanced mRNA-type vaccines.”⁸

Opponents of emergency reform argue that it runs antithetical to patent and trade secret law and that reform will harm the overall public welfare. They argue that if IP rights are waived, researchers and “pharmaceutical companies will otherwise be disincentivized to innovate and invest in vaccine research and development.”⁹ That changing the system, which is designed to incentivize innovation by offering inventors exclusive IP rights in exchange for disclosure of their work, will result in a slowing or halting of healthcare innovation.

Proponents of emergency reform, however, argue that without government-mandated reform, vulnerable populations are thus forced to rely on corporations’ sense of philanthropy in order to gain equitable access to healthcare.¹⁰ Arguments in favor of reform parallel that of the AIDS epidemic––in Africa, hundreds of thousands of people died of AIDS “long after antiretroviral drugs were widely available in wealthy nations, because the patented medications were being sold at a price far too high for governments in the worst-affected countries to purchase.”¹¹ Although the COVID-19 pandemic has improved within United States “most of the world isn’t so lucky. The virus is currently raging in India and throughout South America, overwhelming health care systems and inflicting suffering and loss on a horrific scale.”¹² As of May 2021, long after COVID-19 vaccines were available in the U.S.,¹³ “[f]ewer than 1% of people in low-income countries received COVID-19 vaccines.”¹⁴

In the context of the COVID-19 pandemic, and from an equity and ethics perspective, it is unjust to deny equitable access to vaccines and healthcare research when facing a global health crisis, while allowing large pharmaceutical companies, who hold all of the bargaining power, to profit. This is especially true when considering the U.S.’s (and other Western Powers’) long history of exploiting lower-income countries, as related to healthcare research and drug trials.¹⁵

IP reform, however, must be tailored to balance equity concerns and inventors’ rights. Where reform is overly expansive, it may disincentivize innovation; but without it, corporations are entitled to exploit vulnerable populations for profit, even in emergency situations. An emergency suspension of IP rights, like the proposed COVID-19 waiver, appears to best balance these competing needs: although the waiver is unprecedented (and broadly waives IP rights), it is limited in scope (to the COVID-19 pandemic) and actively considers the dangers and inequities in allowing for expansive IP rights during a global health crisis. While the COVID-19 emergency policy would only be the first step in working towards future emergency IP reform, it would remove a major barrier to equitable access to healthcare and act as a basis for other forward-looking IP policies.

* J.D., University of Minnesota Law School Class of 2022, JLI Vol. 40 Editor-In-Chief

Youn Jung & Soonman Kwon, The Effects of Intellectual Property Rights on Access to Medicines and Catastrophic Expenditure, 45 Int’l J Health Serv. 507, 507 (2015). ↵
Sharifah Sekalala et al., Decolonising Human Rights: How Intellectual Property Laws Result in Unequal Access to the COVID-19 Vaccine, 6 BMJ Global Health (2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8277484/. ↵
Patent Basics, LawShelf Educ. Media, https://lawshelf.com/videocoursesmoduleview/patent-basics-module-1-of-5 (last visited Mar. 12, 2022). ↵
See 18 U.S.C. §§1831–1839. ↵
Elizabeth A. Rowe & Sharon K. Sandeen, Trade Secret Law Cases and Materials 2 (3rd ed., 2020). ↵
See Andrew Shalal & Emma Farge, U.S., EU, India, S. Africa Reach Compromise on COVID Vaccine IP Waiver Text, Reuters (Mar. 16, 2022), https://www.reuters.com/business/healthcare-pharmaceuticals/us-eu-india-s-africa-reach-tentative-pact-covid-vaccine-ip-waiver-sources-2022-03-15/. ↵
Id. ↵
Id. ↵
Harvey Rubin & Nicholas Saidel, Innovation Beyond Patent Waivers: Achieving Global Vaccination Goals Through Public-Private Partnerships, Brookings (Aug. 31, 2021), https://www.brookings.edu/blog/up-front/2021/08/31/innovation-beyond-patent-waivers-achieving-global-vaccination-goals-through-public-private-partnerships/. ↵
Moderna claims it will not enforce COVID-19 vaccine IP rights in several low-income countries. Krista Mahr, Moderna Says It Will ‘Never’ Enforce Covid-19 Vaccine Patents in Dozens of Low- and Middle-Income Countries, Politico (May 7, 2022), https://www.politico.com/news/2022/03/07/moderna-never-enforce-covid-vaccine-patents-low-income-countries-00014874. ↵
Brink Lindsey, Why Intellectual Property and Pandemics Don’t Mix, Brookings (June 3, 2021), https://www.brookings.edu/blog/up-front/2021/06/03/why-intellectual-property-and-pandemics-dont-mix/. ↵
Id. ↵
FDA Approves First Covid-19 Vaccine, U.S. FDA, (Aug. 23, 2021), https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-vaccine. ↵
Amy Maxmen, In Shock Move, US Backs Waiving Patents on COVID Vaccines, Nature (May 6, 2021), https://www.nature.com/articles/d41586-021-01224-3. ↵
Susan Donaldson James, Syphilis Experiments Shock, but So Do Third World Drug Trials, ABC News (Aug. 30, 2011), https://abcnews.go.com/Health/guatemala-syphilis-experiments-shock-us-drug-trials-exploit/story?id=14414902; see Katrin Weigmann, The Ethics of Global Clinical Trials, 16 EMBO Reports 566, 566 (2015), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4428044/ (“In developing countries, participation in clinical trials is sometimes the only way to access medical treatment.”). ↵

Abortion Asylees: Is There Still a Path Forward After Dobbs?

By jlieditors

By Madelyn Cox-Guerra*

Background:

The overturning of Roe v. Wade has extended the barriers noncitizens face in attempting to access abortion in the United States.^[1] In particular, it further complicates the question of whether a noncitizen can seek abortion asylum in the U.S., now that the right to an abortion is no longer federally recognized. In the wake of the Dobbs opinion, it is important to examine whether an asylum-seeker could successfully be granted asylum after facing penalties for the criminalization of abortion in their home country. The criminalization of abortion has a drastic impact beyond just the denial of bodily autonomy. In countries that have criminalized abortion, individuals who miscarried their pregnancies have been criminally prosecuted and sentenced to prison terms.^[2] There are such individuals who have succeeded in achieving refugee or asylee status in other countries.^[3]

The number of undocumented immigrants and asylum applicants from countries that criminalize abortion demonstrates that being able to apply for asylum on the grounds of facing persecution due to the criminalization of abortion could help many people achieve legal status.^[4] In 2019, the Migration Policy Institute reported that the top five countries of origin for undocumented immigrants in the U.S. are Mexico (48%), El Salvador (7%), Guatemala (7%), India (5%), and Honduras (4%).^[5] Of these five countries, El Salvador and Honduras have complete abortion bans with criminal penalties,^[6] Guatemala has an abortion ban with exceptions to save the life of the mother, India has legalized abortion prior to 9 weeks of gestation except in special circumstances, and some states in Mexico have legalized abortions.^[7] Further, in the last three years, a significant portion of asylum applicants have been from Honduras and El Salvador. This shows that there is overlap between people in need of asylum and restrictive abortion laws in their home countries.

Figure 1^[8]

It is also possible that the hundreds of pregnant women detained by D.H.S. are in need of abortion care. The U.S. Border Patrol and CBP Office of Field Operations process hundreds of pregnant women per year. In fact, “OFO reported holding over 3,900 pregnant women from March 2018 through September 2019 at its ports of entry.”^[9]

It seems that no opinions analyzing asylum claims on the grounds of being persecuted by countries that criminalize abortion, or even needing abortion access, have been published or made publicly available. However, it is possible that these potential grounds for asylum could be successfully analogized to other grounds for asylum, such as (1) being subjected to government enforced forcible sterilization or abortion due to population control policies, (2) being subjected to Female Genital Mutilation (FGM), or (3) being a victim of gender-based domestic violence. This blog analyzes the precedential potential of each of these types of asylum claims.

Basic Requirements of Asylum Claims:

The statute governing asylum is 8 U.S. Code § 1158. An asylum applicant must demonstrate that they are a refugee under 1101(a)(42)(A), and that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”^[10] Refugees must establish that they are “unable or unwilling to return to, and [are] unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution.”^[11] This blog’s analysis will focus on the Particular Social Group category.

Membership in a Particular Social Group is grounds for asylum for individuals in a group who either cannot change, or should not be required to change, their group status because it is fundamental to their individual identities or consciences.^[12] A Particular Social Group must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”^[13] The characteristics of the social group “must ‘exist independently’ of the harm asserted in an application for asylum or statutory withholding of removal.”^[14]

Forcible Abortions and Sterilization (Statutory Refugee)

After the BIA decided in Matter of Chang^[15] that the “implementation of a coercive population control policy is not, on its face, a basis for asylum eligibility,”^[16] Congress passed the Illegal Immigrant Reform and Immigrant Responsibility Act in 1996. The IIRIRA included Section 601, which added explicit language defining a person who failed, refused, or resisted coercive population control programs (forced abortions and sterilization) as refugees^[17] persecuted based on their political opinion.^[18] In addition to individuals who had experienced forced abortions and involuntary sterilizations, the BIA held that 8 U.S.C. § 1101(a)(42)(B) included the spouses of victims of forced abortion and sterilization.^[19] However, in Matter of J.S., the Attorney General overturned In re C-Y-Z.^[20] In Matter of J.S, the asylum applicant was a “married Chinese national whose wife remain[ed] in China” seeking asylum “under section 601(a) because his wife allegedly was forced to undergo an ‘involuntary sterilization’ procedure.”^[21] The attorney general concluded, because the language in the statute focused on “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization,”^[22] the plain language does not include the spouses of those individuals.^[23] The Attorney General made it clear that the opinion was limited, and the “decision holds only that spouses are not entitled to the same per se refugee status that section 601(a) expressly accords persons who have physically undergone forced abortion or sterilization procedures.”^[24] This implies that a spouse could successfully apply for asylum, just without automatically being defined as a refugee by statute. An important part of the Attorney General’s opinion is that merely living in a country that enforces coercive population control is not enough to qualify as a refugee, because then “most of China’s population would qualify as refugees under the provision [Section 601].”^[25]

For pro-choice advocates, it is easy to compare the persecution of “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization” in a country with coercive population control to the persecution of a person in need of an abortion or birth control access.^[26] However, despite this parallel logic, there is a statutory basis for asylum on the grounds of forced abortion sterilization, but not for barring access to abortion and contraception. Because of this, the case law regarding 8 U.S.C. § 1101(a)(42)(B) is unlikely to be persuasive in arguing for asylum on the grounds of being denied access to abortion and contraception.

Female Genital Mutilation (Particular Social Group)

In Matter of Kasinga, the BIA decided that individuals in social groups that practice FGM, in danger of having FGM, and are opposed to the practice are a Particular Social Group.^[27] The asylum-seeker in that case was “a member of a social group consisting of young women of the Tchamba- Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice.”^[28] The fear of having to undergo FGM established “a well-founded fear of persecution” because “under tribal custom, her aunt and her husband planned to force her to submit to FGM.”^[29] Importantly, even if FGM^[30] has already occurred, that does not eliminate the asylum-seeker’s claim, because it is possible for FGM to occur more than once (depending on the circumstances).^[31]

Matter of Kasinga identifies a very specific cultural practice, FGM, as grounds for asylum, which likely means it cannot be persuasively used as precedent to argue that a person from a country that criminalized abortion and suffered physical harm from that is entitled to asylum. However, Matter of Kasinga does establish that it is possible for victims of specific types of gender-based violence to qualify as a Particular Social Group for the purposes of asylum law.

Gender-Based Domestic Violence (Particular Social Group)

Whether women experiencing gender-based violence, specifically domestic violence, is a particular social group is a legal question in constant flux. In Matter of A-R-C-G, the BIA recognized “married women in Guatemala who are unable to leave their relationship” as a particular social group.^[32] However, in Matter of A-B, then-Attorney General Jeff Sessions overruled Matter of A-R-C-G in 2018.^[33] In 2021, Attorney General Merrick Garland released an opinion which vacated Matter of A-B, thus reinstating the authority of Matter of A-R-C-G, which means the current precedent establishes that being a victim of domestic violence in a country unwilling to take action to end domestic violence can be a Particular Social Group.^[34] However, the Fifth Circuit (which controls district courts in Texas, Louisiana, and Mississippi), recently released an opinion reversing Matter of A-R-C-G, which makes the decision irrelevant within just the Fifth Circuit.^[35]

For now, outside the Fifth Circuit, Matter of A-R-C-G can provide helpful precedent for arguing that a person persecuted for having an abortion is part of a Particular Social Group. Two potential Particular Social Groups are: (1) a person who had a miscarriage in [x country], and (2) a person who had an illegal abortion in [x country].

First, having had an abortion or miscarriage are immutable traits; a person cannot change their medical history. Meanwhile, being pregnant is not truly immutable because a person cannot stay pregnant forever; however, wanting to exercise the right to an abortion as a pregnant person is a political opinion that can fit into this category. Second, a group of persons within a specific country that have either had an abortion or miscarriage is sufficiently particular, and in fact includes more parameters that those set out in Matter of A-R-C-G. Finally, the Particular Social Group is separate from the persecution. The characteristics of the social group “must ‘exist independently’ of the harm asserted in an application for asylum or statutory withholding of removal.”^[36] Miscarriage itself is not part of the persecution, but facing prosecution and a prison sentence for having a miscarriage is persecution. The same is true for individuals who have had an abortion, and those in need of an abortion. To provide a counter-example, “a person who was sentenced to a prison term under a statute criminalizing abortion” would not a valid Particular Social Group because it is not distinct from the persecution.

Further, past criminalization in these cases establishes past persecution, and is also evidence of future persecution because a person can become pregnant, have a miscarriage, and have an abortion multiple times. This means there is a constant risk of being re-persecuted.

Conclusion:

B.I.A. and A.G. asylum case law precedent establishes that victims of domestic violence in countries unwilling to end pervasive domestic violence are a Particular Social Group. Matter of A-R-C-G likely provides precedent for arguing that a person in need of an abortion, or who has already been criminalized for abortion or miscarriage, is a member of a Particular Social Group and thus entitled to asylum. Determining whether the case for abortion asylum exists is more important now than ever since there is no longer a federal right to abortion due to Dobbs, and abortion is no longer legal in eleven states.^[37]

—

[1] While the Biden administration has eliminated many anti-choice immigration policies from Trump’s presidency, post-Dobbs state abortion bans have increased the difficulty in accessing abortion and other types of reproductive care. During the Trump Administration, the ORR had a policy of denying abortions to undocumented minor wards in the state’s custody; now, the ORR has a policy of informing minors of their right to abortion and presents guidelines for ORR facilities which direct them to ensure minors needing abortions are able to travel to other states as necessary. See Office of Refugee Resettlement, Field Guidance – October 1, 2021 (2021) at 2–3 (https://www.acf.hhs.gov/sites/default/files/documents/orr/FG-21-SB-8-and-Garza.pdf).

[2] Nina Lakhani, Abortion: El Salvador’s jailed women offer US glimpse of post-Roe future, The Guardian (May 19, 2022), https://www.theguardian.com/world/2022/may/19/abortion-el-salvador-jailed-women-roe-v-wade (reporting that “[t]he Salvadorian anti-abortion law, which was subsequently written into the constitution, has led to at least 182 women who suffered an obstetric emergency being prosecuted for abortion or aggravated homicide.”).

[3] Lena Bodenhamer, Abortion refugees: the future of American abortion bans, THE EMORY WHEEL (Jan. 13, 2022), https://emorywheel.com/abortion-refugees-the-future-of-american-abortion-bans/.

[4] This is not to assume the opinions of undocumented persons or asylum-seekers, but rather to show that the high number of undocumented people and asylum-seekers from countries criminalizing abortion means some of them have likely faced persecution due to their support for abortion rights, getting or trying to get an abortion, or being prosecuted for having a miscarriage.

[5] Migration Policy Institute, Profile of Unauthorized Population, (accessed Sept. 30, 2022), https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US.

[6] Madeline Fitzgerald, Countries with the Most Restrictive Abortion Laws, U.S. News (July 13, 2022), https://www.usnews.com/news/best-countries/slideshows/countries-with-the-most-restrictive-abortion-laws?slide=2 (stating that “at least 182 women have been prosecuted as a result of medical emergencies during their pregnancies, which were subsequently charged as abortions or homicides” in El Salvador since abortion was totally banned in 1998 and “[s]ince 1985, it has been illegal to terminate any pregnancy in Honduras – even if the pregnancy is the result of rape or incest or could endanger the life of the mother. In 2021, this restriction was made even tighter when the Honduran Congress added an abortion ban to the country’s constitution.”).

[7] Gustavo Solis, Mexican abortion clinics bracing for influx of Americans, K.P.B.S. (June 30, 2022), https://www.kpbs.org/news/border-immigration/2022/06/30/mexican-abortion-clinics-bracing-influx-americans. (“Mexico, which is overwhelmingly Catholic, had long banned abortions. But now they are legal in eight states for people who are up to 12 weeks pregnant, and longer in cases of rape or to save a patient’s life.”).

[8] Ryan Baugh, Fiscal Year 2020 Refugees and Asylees Annual Flow Report, Dept. of Homeland Sec., at 17 (Mar. 8 2022), https://www.dhs.gov/sites/default/files/2022-03/22_0308_plcy_refugees_and_asylees_fy2020_1.pdf.

[9] United States Government Accountability Office, Care of Pregnant Women in DHS Facilities (2020), https://www.gao.gov/assets/gao-20-330.pdf, at 21.

[10] 8 U.S.C. § 1158 (b)(1)(B)(i).

[11] 8 U.S.C. § 1101(a)(42)(A).

[12] Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).

[13] Alvarez Lagos v. Barr, 927 F.3d 236, 252 (4th Cir. 2019).

[14] Matter of A-B-, 27 I&N Dec. 316, 334 (A.G. 2018) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 236 n.11 (BIA 2014)).

[15] 20 I&N Dec. 38 (BIA 1989).

[16] Paula Abrams, Population Politics: Reproductive Rights and U.S. Asylum Policy, 14 Geo. Immigr. L. J. 881, 885 (2000).

[17] 8 U.S.C. § 1101(a)(42) (declaring “[t]he term “refugee” means . . .”).

[18] 8 U.S.C. § 1101(a)(42)(B) (emphasis added).

[19] See In re C-Y-Z, 21 I&N Dec. 915 (BIA 1997).

[20] 24 I&N Dec. 520 (A.G. 2008).

[21] Id. at 522.

[22] 8 U.S.C. § 1101(a)(42)(B).

[23] Id.

[24] Id.

[25] Matter of J.S., 24 I&N Dec. 520, 534 (A.G. 2008).

[26] 8 U.S.C. § 1101(a)(42)(B).

[27] 21 I&N Dec. 357 (BIA 1996).

[28] Id. at 358.

[29] Id.

[30] Id. at 361. Matter of Kasinga provides a description of the physical harm caused by FGM: “The record material establishes that FGM in its extreme forms is a practice in which portions of the female genitalia are cut away. In some cases, the vagina is sutured partially closed. This practice clearly inflicts harm or suffering upon the girl or woman who undergoes it. FGM is extremely painful and at least temporarily incapacitating. It permanently disfigures the female genitalia. FGM exposes the girl or woman to the risk of serious, potentially life-threatening complications. These include, among others, bleeding, infection, urine retention, stress, shock, psychological trauma, and damage to the urethra and anus. It can result in permanent loss of genital sensation and can adversely affect sexual and erotic functions.”

[31] Matter of A— T— , 25 I&N Dec. 4 (B.I.A. 2009).

[32] Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).

[33] Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)

[34] Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021).

[35] Tahirih Denounces New Opinion on Matter of A-R-C-G-, Tahirih Justice Center (Oct. 28, 2021), , https://www.tahirih.org/news/tahirih-denounces-new-opinion-on-matter-of-a-r-c-g/.

[36] Matter of A-B-, 27 I&N Dec. 316, 334 (A.G. 2018) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 236 n.11 (BIA 2014)).

[37] CENTER FOR REPRODUCTIVE RIGHTS, Abortion is Now Illegal in 11 U.S. States, CENTER FOR REPRODUCTIVE RIGHTS (Aug. 30 2022), https://reproductiverights.org/abortion-illegal-11-states/.

* Madelyn Cox-Guerra, J.D. Candidate, University of Minnesota Law School Class of 2023, JLI Vol. 41 Lead Online Editor

How Current Law Fails to Protect Defendants with Mental Illnesses from the Death Penalty

By jlieditors

By Bailey Martin

Eighteen men were executed in the United States in 2022^[1], and so far, seven more men and women have been executed in 2023.^[2] Despite numerous arguments that these individuals suffered from severe mental illnesses, last-minute appeals and clemency requests were unsuccessful.^[3] Furthermore, upcoming scheduled executions continue this pattern of executing individuals with severe mental illnesses.^[4] These cases demonstrate the failure of our criminal legal system to protect vulnerable individuals with severe mental illness.

Although the Supreme Court has banned the executions of those with intellectual disabilities and those under the age of 18, it has not extended such protections to individuals with severe mental illness. In Atkins v. Virginia, the Supreme Court reasoned that people with intellectual disabilities “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.”^[5] Furthermore, their intellectual disability may “jeopardize the reliability and fairness of capital proceedings;” for example, these individuals may be less able to participate in their own defense.^[6] Consequently, the Supreme Court held that executing people with intellectual disabilities does not serve the purposes of retribution or deterrence of capital crimes, and banned its use against these individuals.^[7] The Court applied similar reasoning when banning the death penalty for individuals whose crimes were committed while they were under the age of 18, stating that juveniles have insufficient culpability to be eligible for the death penalty.^[8]

The Supreme Court has not extended this reasoning to those with severe mental illnesses, though. Current laws and procedures surrounding mental illness in death penalty cases fail to adequately protect individuals charged and sentenced to death. Presently, mental health can be raised in four ways during a capital case: (1) competency to stand trial, (2) a plea of not guilty by reason of insanity, (3) mitigation evidence against a death sentence, and (4) competency for execution. Despite the Supreme Court’s failure to protect individuals with serious mental illnesses, some states have passed legislation to address this issue on their own.

Competency to Stand Trial and for Execution

While competency to stand trial can be traced back to English case law, the current legal standard was established in Dusky v. United States.^[9] In competency proceedings, a court must determine “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.”^[10] Every state in the United States has adopted some variation of this test, despite its vagueness.^[11]

Yet this standard fails to protect those with severe mental illnesses. First, this standard is extremely high. While someone with a severe mental illness may be able to understand the proceedings against them, this standard does not address the culpability issues the Supreme Court was concerned with in Atkins and Roper. Second, even if a defendant is found incompetent, they are often provided treatment to restore them to competency and subsequently tried.^[12] Therefore, competency proceedings do not protect mentally ill defendants from capital proceedings; they may only delay them.

The Supreme Court also held in Ford v. Wainwright that the Eighth Amendment forbids states from executing individuals “who [have] no comprehension of why he has been singled out and stripped of his fundamental right to life.”^[13] To be incompetent for execution, a court must determine whether the individual “has a rational understanding of the government’s reason for executing” them.^[14] Yet once again, the burden of proof is on the defendant to prove their insanity, and this standard is also very high.^[15] Just as with the competency for trial standard, many individuals with severe mental illness may not meet the requirements for incompetency.^[16] Furthermore, competency for execution looks at the mental state of a person years after the crime as they near an execution date – it fails to consider an individual’s mental health at the time of the alleged crime.^[17]

Plea of Not Guilty by Reason of Insanity (NGRI)

The insanity defense has its roots in England, and the first American case to adopt a plea of not guilty by reason of insanity test was Parsons v. State.^[18] While each state’s statutes vary, the American Law Institute’s Model Penal Code “M’Naghten test” states that “a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality… of his conduct or to conform his conduct to the requirements of the law.”^[19]

Yet this process, too, does not protect defendants with mental illnesses from the death penalty. These pleas are rarely successful, even if substantial evidence exists that capitally charged individuals suffer from serious mental illnesses.^[20] In fact, some studies demonstrate that defendants who raise an unsuccessful insanity defense are more likely to receive the death penalty than those who do not.^[21] Furthermore, even if the plea is successful, the individual may still face a life of confinement in psychiatric facilities.^[22]

Mitigation

In death penalty cases, evidence of mental illness can be used as mitigation evidence to convince a jury that a death penalty is not appropriate.^[23] While this evidence can be powerful, evidence of mental illness can also backfire on defendants and actually make juries more likely to choose the death penalty.^[24] Even courts may consider evidence of mental illness to be an aggravating factor.^[25] Evidence of mental illness, in some cases, can be viewed by juries as an indicator of an individual’s future dangerousness.^[26] Individuals who provide evidence of mental illness to show diminished culpability may face a double-edged sword, where juries and the court see this as evidence that they will commit future crimes if not given the death penalty.^[27] Therefore, even though defense counsel may have wide latitude to present evidence of a capitally charged individual’s serious mental illness, the mitigation process may not protect them from the death penalty.^[28] Additionally, individuals with mental illnesses may not be equipped to adequately assist in their own defense.^[29]

Reform Efforts

Because of this gap left by the Supreme Court, and to address the lack of protections for capitally charged individuals with serious mental illness, states are creating their own legislation and procedures. In 2017, seven states had proposed legislation to prohibit the death penalty for those who have serious mental illnesses at the time of their crime.^[30]

Two states – Ohio and Kentucky – have passed such legislation.^[31] These laws also have their flaws, though. For example, Ohio’s law only gives individuals currently sentenced to death one year to appeal based on this new legislation.^[32] Also, if successful under this bill, individuals in Ohio are only eligible for life in prison with no possibility of parole.^[33] These bills also only ban the death penalty for limited diagnoses, including schizophrenia, schizoaffective disorder, bipolar disorder, and delusional disorder.^[34] And unlike Ohio’s law, Kentucky’s bill does not apply to those already sentenced to death.^[35]

While several other states are considering similar legislation, the Supreme Court must step in to ban the death penalty for those with serious mental illness.^[36] Neither retribution nor deterrence support its continued use, and the use of the death penalty against these individuals violates the Eighth Amendment’s ban on cruel and unusual punishment.^[37] By extending its reasoning in Atkins and Roper, the Supreme Court can provide additional protections for individuals suffering with mental illness and facing the death penalty.^[38]

**Bailey Martin is an Online Editor for the Vol. 41 of the Minnesota Journal of Law & Inequality.

[1] Khaleda Rahman, Every Death Row Prisoner Executed in the U.S. in 2022, Newsweek (Dec. 26, 2022), https://www.newsweek.com/every-death-row-prisoner-executed-2022-1769611.

[2] Execution List 2023, Death Penalty Information Center, https://deathpenaltyinfo.org/executions/2023 (last updated Feb. 23, 2023).

[3] See, e.g., Oklahoma Denies Clemency to Death-Row Prisoner Richard Fairchild Who Suffers from Brain Damage, Hallucinations, and Delusions, Death Penalty Information Center (Oct. 17, 2022), https://deathpenaltyinfo.org/news/oklahoma-denies-clemency-to-death-row-prisoner-richard-fairchild-who-suffers-from-brain-damage-hallucinations-and-delusions; Texas Executes Mentally Ill Man After Denying Him Access to Mental Health Testing, Death Penalty Information Center (Nov. 9, 2022), https://deathpenaltyinfo.org/news/texas-prepares-to-execute-mentally-ill-man-while-denying-him-access-to-mental-health-testing; Oklahoma Executes Benjamin Cole for the Murder of His 9-Month-Old Daughter, KAKE.com (Jan. 28, 2023), https://www.kake.com/story/48251301/oklahoma-executes-benjamin-cole-for-the-murder-of-his-9monthold-daughter (describing how Benjamin Cole suffered from schizophrenia and brain damage); Derrick L. McRae, Florida Should Not Execute a Person with Mental Illness, Tampa Bay Times (Feb. 22, 2023), https://www.tampabay.com/opinion/2023/02/22/florida-should-not-execute-person-with-mental-illness-column/ (describing Donald Dillbeck’s lifelong struggle with mental health, substance use, and trauma, which continued into his decades of incarceration).

[4] Upcoming Executions Raise Concerns About Mental Illness and the Death Penalty, Death Penalty Information Center (Feb. 20, 2023), https://deathpenaltyinfo.org/news/upcoming-executions-raise-concerns-about-mental-illness-and-the-death-penalty (describing the cases of Donald Dillbeck in Florida, who was recently executed, and Andre Thomas in Texas, who is scheduled to be executed in April 2023).

[5] 536 U.S. 304, 306 (2002).

[6] Id. at 306-307.

[7] Id. at 319.

[8] Roper v. Simmons, 543 U.S. 551, 572-573 (2005).

[9] Gianni Pirelli, A Meta-Analytic Review of Competency to Stand Trial Research, 17 Psych. Pub. Pol. And L. 1, 2 (2011).

[10] Dusky v. United States, 362 U.S. 402 (1960).

[11] Pirelli, supra note 9, at 2.

[12] Lisa Callahan and Debra A. Pinals, Challenges to Reforming the Competence to Stand Trial and Competence Restoration System, 71 Psychiatric Services 691 (2020) (describing restoration treatments in competency cases).

[13] Ford v. Wainwright, 477 U.S. 399, 409 (1986).

[14] See Severe Mental Illness and the Death Penalty, American Bar Association: Death Penalty Due Process Review Project 24 (Dec. 2016), available at https://www.prisonpolicy.org/scans/aba/SevereMentalIllnessandtheDeathPenalty_WhitePaper.pdf (citing Panetti v. Quarterman, 551 U.S. 930, 933 (2007)).

[15] Id. at 24.

[16] Id.

[17] Id.

[18] Eugene M. Fahey, Laura Groschadl, & Brianna Weaver, “The Angels that Surrounded My Cradle”: The History, Evolution, and Application of the Insanity Defense, 68 Buffalo L. Rev. 805, 816-817 (2020).

[19] Id. at 818.

[20] Mental Illness and the Death Penalty, ACLU (May 5, 2009), https://www.aclu.org/report/report-mental-illness-and-death-penalty.

[21] Eileen P. Ryan and Sarah B. Berson, Mental Capacity and the Death Penalty, 25 St. Louis U. Pub. L. Rev. 351, 377 (2006).

[22] Fahey, supra note 13, at 806.

[23] Episode Fourteen: Legal Process, Podcast Transcript, pg. 2, Death Penalty Information Center, https://files.deathpenaltyinfo.org/legacy/podcast/resources/Episode14LegalProcess.pdf.

[24] Jonathan P. Vallano, What Sways a Death Penalty Decision?, American Psychological Association (Apr. 1, 2020), https://www.apa.org/monitor/2020/04/jn.

[25] See, e.g., Rabindranath Ramana, Living and Dying with a Double-Edged Sword: Mental Health Evidence in the Tenth Circuit’s Capital Cases, 88 Denv. U. L. Rev. 339 (2011).

[26] Id. at 369-370.

[27] Id. at 368, n.213.

[28] See Severe Mental Illness and the Death Penalty, American Bar Association: Death Penalty Due Process Review Project 22-23 (Dec. 2016), available at https://www.prisonpolicy.org/scans/aba/SevereMentalIllnessandtheDeathPenalty_WhitePaper.pdf.

[29] Id. at 34. (“Those with mental illness also risk wrongful conviction and execution because their disorder impairs their ability to assist in their own defense, as mentioned earlier. They might be generally unassertive and unwilling

to provide vigorous objection to the prosecution’s claims. Mental illness can make them poor witnesses

in their own case, as they may forget or confuse exculpatory evidence. Their symptoms could also render

communication with counsel very difficult, complicating their attorneys’ already challenging task of securing an

innocent verdict.”).

[30] Rebecca Beitsch, States Consider Barring Death Penalty for Severely Mentally Ill, Pew (Apr. 17, 2017), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/04/17/states-consider-barring-death-penalty-for-severely-mentally-ill (listing Arkansas, Indiana, Ohio, South Dakota, Tennessee, Texas, and Virginia).

[31] Annika Russell, Ohio Passes Law Barring the Death Penalty for Defendants with Serious Mental Illness, ABA (Feb. 24, 2021), https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/ohio-bars-death-penalty-for-mental-illness/; Kentucky Legislature Passes Bill Prohibiting Death Penalty for People with Serious Mental Illness, Death Penalty Information Center (Mar. 29, 2022), https://deathpenaltyinfo.org/news/kentucky-legislature-passes-bill-prohibiting-execution-of-people-with-serious-mental-illness.

[32] Russell, supra note 30.

[33] Id.

[34] Russell, supra note 30; Kentucky Legislature, supra note 30.

[35] Kentucky Legislature, supra note 30.

[36] Id.

[37] American Bar Association, supra note 14, at 25-26.

[38] Id. at 28.

The Constitutionality of SB 1142

By jlieditors

By Chase Lindemann[1]

On March 1, 2022, Oklahoma State Senator Rob Standridge introduced Senate Bill 1142 to the Oklahoma Senate Floor.^[2] SB 1142’s title states that this bill is an act “prohibiting certain schools and school libraries from maintaining or promoting certain books.”^[3] If a parent believes that there is a violation of SB 1142, they can submit a written request for removal of the book(s) they believe are violating this law.^[4] Within thirty days of receiving this request, the school administrator must either remove the book or provide a statement explaining their reason(s) for denying the request.^[5] Should the request be denied, the parent or legal guardian can sue the school and may be entitled to an injunction removing the book.^[6]

The books prohibited by SB 1142 are those “that make as their primary subjects the study of sex, sexual lifestyles or sexual activities, or books that are of a controversial nature that a reasonable parent or legal guardian would want to know of or approve of prior to their child being exposed to it.”^[7] During the committee hearing discussing the bill, Sen. Standridge explained that the bill was created to prevent public school libraries from displaying books that discuss sex; for Sen. Standridge, classrooms and sex education were appropriate for introducing students to the topics discussed in the prohibited books.^[8] Regardless of Sen. Standridge’s intent, this bill has the potential to do far more, and far worse, than what the bill’s author expects it will do. This blog post will examine how SB 1142 may be an unconstitutional restriction on the First Amendment’s freedom of speech.

The Dangers of SB 1142

Sen. Standridge intends this bill to prevent libraries from being the gatekeeper of books discussing sex, and instead give this power to parents. However, the language of the current bill and that of prior versions showcase how the proposed legislation does and can go beyond the author’s intent. A previous version of the bill was more explicit in what it wanted to prohibit: “books that make as their primary subject the study of sex, sexual preferences, sexual activity, sexual perversion, sex-based classifications, sexual identity, or gender identity.”^[9] Even though this language has been removed, a parent could argue that books discussing “sexual lifestyles” include books discussing gender identity or sexual preferences.

A parent need not rely on that argument either: the bill allows the prohibition of books of a “controversial nature,” which opens Pandora’s Box to things parents disagree with. The author of the bill was aware of this: an amendment was proposed to change “controversial nature” to “predominantly sexual” because the author thought “controversial nature” “opened things up too much,” but this proposal was denied.^[10]

Finally, the bill’s language broadens its scope beyond public school libraries. By expressly mentioning “schools” in addition to school libraries, the bill suggests that a parent could target books inside a classroom. The potentially devastating consequences of this bill makes its constitutionality all the more important.

Content-Based Restriction

Under the First Amendment, the government cannot restrict speech because of the speech’s message, ideas, subject matter, or content.^[11] When the government passes a law restricting speech based on its content, these “content-based” restrictions are presumed to be unconstitutional and can only be justified if the government shows that the restrictions are narrowly tailored to serve a compelling state interest.^[12] Since SB 1142 is a government regulation that restricts speech based on its content, Oklahoma would need to show either that the bill (1) restricts speech that is not protected by the First Amendment, or (2) is narrowly tailored to serve a compelling state interest.

SB 1142 prohibits protected speech.

The Supreme Court has noted that there are certain categories of unprotected speech: obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, and child pornography.^[13] The only conceivable category that books on “sex, sexual lifestyles, or sexual activities” could fall under is obscenity. In Miller v. California, the Supreme Court outlined the three-prong test for determining whether speech is obscene:

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.^[14]

There are certainly some books prohibited by SB 1142 that would meet this definition, but it cannot seriously be contested that any book whose primary subject is the study of sex, sexual lifestyles or sexual activities meet all three criteria. Therefore, SB 1142 could not be upheld by invoking the obscenity exception to First Amendment protections.

SB 1142 is not narrowly tailored to serve a compelling state interest.

Because SB 1142 prohibits protected speech, Oklahoma would need to argue that it has a compelling state interest in preventing children from being exposed to the subject matter of the books prohibited by the bill. One such interest could be the government’s interest in “protecting the physical and psychological well-being of minors,” which has been “extend[ed] to shielding minors from the influence of literature that is not obscene by adult standards.”^[15] Accepting that SB 1142’s prohibition does further a compelling interest, it would likely not be narrowly tailored.

“[T]he requirement of narrow tailoring is satisfied ‘so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’”^[16] In other words, the “[g]overnment may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”^[17] Oklahoma would need to show that a “substantial portion” of SB 1142’s ban does not fall on books that the bill is not intended to address.^[18] SB 1142 suppresses a large quantity of speech that “does not cause the evil” SB 1142 seeks to eliminate, and is certainly broader than necessary to achieve any compelling government interest Oklahoma may have. As such, SB 1142 cannot be said to be narrowly tailored to further a compelling government interest.

_________________________________

[1] J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Managing Editor.

^[2] See S.B. 1142, 58th Leg., 2d Reg. Sess. (Okla. 2022) (as revised by the Committee on Education), http://webserver1.lsb.state.ok.us/cf_pdf/2021-22%20FLR/SFLR/SB1142%20SFLR.PDF.

^[3] Id. at 1.

^[4] Id. at 2.

^[5] Id.

^[6] Id.

^[7] Id. at 1.

^[8] Hearing on S.B. 1142 Before the S. Educ. Comm., 58th Leg., 2d Reg. Sess., at 1:46:47–1:47:46 (Mar. 1, 2022) (statement of bill author Sen. Rob Standridge), https://sg002-live.sliq.net/00282-vod/_definst_/2022/03/Education_2022-03-01-10.00.22_52730_17.mp4/playlist.m3u.

^[9] S.B. 1142, 58th Leg., 2d Reg. Sess. (Okla. 2022) (as originally introduced), http://webserver1.lsb.state.ok.us/cf_pdf/2021-22%20INT/SB/SB1142%20INT.PDF.

^[10] Hearing on S.B. 1142 Before the S. Educ. Comm., 58th Leg., 2d Reg. Sess., at 1:46:00–1:46:16 (Mar. 1, 2022) (statement of bill author Sen. Rob Standridge), https://sg002-live.sliq.net/00282-vod/_definst_/2022/03/Education_2022-03-01-10.00.22_52730_17.mp4/playlist.m3u..

^[11] Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

^[12] Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

^[13] Victoria L. Killion, Cong. Rsch. Serv., The First Amendment: Categories of Speech 2 (2019), https://sgp.fas.org/crs/misc/IF11072.pdf.

^[14] Miller v. California, 413 U.S. 15, 24 (1973).

^[15] Sable Commc’ns of Cal. v. FCC, 492 U.S. 115, 126 (1989).

^[16] Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).

^[17] Id.

^[18] Id.

Minnesota Crisis Pregnancy Centers and The Positive Pregnancies Bill

By jlieditors

By Lizzy Miller*

Introduction

In 2022, the federal constitutional right to abortion previously found in Roe v. Wade was overturned by Dobbs v. Jackson Women’s Health Organization.^[1] Crucially, Dobbs found that “the state has an ‘important and legitimate interest’ in protecting fetuses that it does not have in preventing contraception.”^[2] While abortion remains constitutionally protected in Minnesota,^[3] pregnant people searching for care throughout the state may be targeted by anti-abortion organizations posing as medical clinics.^[4] These non-profit organizations are referred to as Crisis Pregnancy Centers (CPCs), and aim to prevent pregnant people from obtaining abortions.^[5] In addition, CPCs promote misinformation regarding abortion, reproductive health, contraception, and sexually-transmitted infections.^[6]

Legal Background

CPCs are not regulated by laws affecting medical centers, and as organizations that provide services free of charge, are also unregulated by the Federal Trade Commission or state ordinances regarding commercial businesses.^[7]As non-medical centers, CPCs and their staff are not bound by the Health Insurance Portability and Accountability Act, or HIPAA.^[8] The main challenges to CPC’s messaging occur through local ordinances.^[9] The Reproductive FACT Act in California, passed in 2015, required CPCs to disclose their unlicensed medical status, state that they do not refer clients for abortions, and provide information to clients regarding free or reduced cost reproductive health services.^[10]The U.S. Supreme Court addressed the constitutionality of this Act in National Institute of Family and Life Advocates v. Becerra in 2018 and found that CPCs’ messaging was protected as free speech under the First Amendment.^[11]

In August of 2022, the Minnesota State Attorney General published a consumer alert in regard to “the limited services and potentially deceptive nature of certain claims” promoted by CPCs.^[12]

CPCs Practices

CPCs spread misinformation to clients seeking reproductive services. CPCs often promote“abortion pill reversal,” a practice encouraging pregnant people to take progesterone to “reverse” the effects of the first of two abortion pills.^[13] One 2019 study intended to study “abortion pill reversal” ended after three women were hospitalized due to severe vaginal bleeding after taking progesterone.^[14] CPCs also use fear- and shame-based tactics to dissuade clients from terminating their pregnancies. In reference to the aftermath of taking the abortion pill, one CPC staff member stated to a pregnant woman “you never get over seeing that baby.”^[15] Despite studies that show abortion is a safer procedure than childbirth,^[16] CPCs falsely claim that abortion results in infertility, breast cancer, and mental health problems.^[17]

Many CPCs advertise free services, but may not provide clients with such services.^[18] Because of this, CPCs often target vulnerable populations who are more likely to seek abortions, such as low-income people and people of color, despite their actual varied purposes in seeking reproductive services.^[19] CPCs targeted advertising is pervasive. Further, CPCs may offer “free” resources such as diapers and baby clothes to clients if they engage in counseling.^[20]This counseling is usually in the form of ‘informative videos,’ which provide additional misinformation surrounding reproductive health and abortions.^[21] These resources are intended to promote parenting rather than abortion. A reproductive justice advocate working with the Texas Equal Access Fund for low-income people obtaining abortions stated that an internet search for “abortion near me” will return results for CPCs rather than abortion clinics.^[22]Additionally, people seeking information about the CPCs before visiting will often be encouraged to visit the centers in person.^[23] Once clients arrive, CPC staff are able to convey misinformation more effectively. Finally, CPCs will not direct clients to other providers that may inform or assist people in seeking abortions.^[24]

A recent study conducted by The Alliance: State Advocates for Women’s Rights and Gender Equality found over 95% of Minnesota’s CPCs do not provide pregnant clients with pre-natal or wellness care.^[25] Gender Justice, a Minnesotan advocacy organization, found that none of Minnesota’s CPCs provide contraception to clients.^[26] CPCs, including almost half of Minnesota’s CPCs, provide non-diagnostic ultrasounds, which provide no medical benefit.^[27]Perhaps most egregiously, CPCs may tell pregnant people they are earlier or further along in pregnancy than is true, complicating their access to abortion if there is a gestational age cut-off.^[28]

Looking Forward – The Positive Pregnancies Bill

The Associated Press found that CPCs have received almost half a billion dollars in public funding since 2010,^[29] while CPCs in Minnesota receive about 3.5 million dollars in public funding each 5-year grant cycle.^[30] In January, the Minnesota Democratic-Farmer-Labor Party introduced a “Positive Pregnancies” bill which “would require state grant recipients to provide medically accurate information about abortion and allocate funds to health care to assist pregnant people and young parents with prenatal care, medical care and reproductive health care, including abortions.”^[31] Specifically, the bill amends Minnesota Statute § 145.4235, “Positive Abortion Alternatives” to remove the requirement that state grant recipients encourage people to carry their pregnancies to term and inform pregnant people on the “developmental characteristics of . . . unborn children.”^[32] Further, the bill would require grant recipients to provide services without requiring preconditions such as counseling, ultrasounds, or viewing media.^[33] The amended bill keeps language that recipients must provide information on adoption services and assistance with childcare.^[34]Finally, the Positive Pregnancies bill does not allow any release of records without written informed consent from the person in question or their representative.^[35]

H.F. 289 provides necessary changes to Minnesota Statute § 145.4235 to support pregnant people. If passed, CPCs would have to change their practices to comply or stop accepting state grants altogether. Until then, pregnant people seeking reproductive services should have all the necessary and correct information about CPCs to make choices about their health and future.

[1] No. 19-1392, 597 U.S. ___ (2022).

[2] Stephen Gilles, Dobbs, Obergefell, and “the Critical Moral Question Posed by Abortion”, SCOTUSblog (July 6, 2022),https://www.scotusblog.com/2022/07/dobbs-obergefell-and-the-critical-moral-question-posed-by-abortion/.

[3] Attorney General Ellison Issues Consumer Alert About Crisis Pregnancy Centers, Off. Of Minn. Att’y Gen. (Aug. 22, 2022),https://www.ag.state.mn.us/Office/Communications/2022/08/23_CrisisPregnancyCenters.asp.

[4] Id.

[5] Id.

[6] Amy G. Bryant & Jonas J. Swartz, Why Crisis Pregnancy Centers are Legal but Unethical, 20 AMA J. of Ethics 269 (2018).

[7] Id. at 271.

[8] What are Crisis Pregnancy Centers?, Planned Parenthood (Nov. 4, 2021), https://www.plannedparenthood.org/blog/what-are-crisis-pregnancy-centers (stating no HIPAA regulation could pose issues for clients in states where anti-abortion laws operate).

[9] Amy G. Bryant & Jonas J. Swartz, Why Crisis Pregnancy Centers are Legal but Unethical, 20 AMA J. of Ethics 269, 271 (2018).

[10] Id. at 272.

[11] 585 U.S. ___ (2018).

[12] Attorney General Ellison Issues Consumer Alert About Crisis Pregnancy Centers, Off. Of Minn. Att’y Gen. (Aug. 22, 2022),https://www.ag.state.mn.us/Office/Communications/2022/08/23_CrisisPregnancyCenters.asp.

[13] Mara Gordon, Safety Problems Lead to Early End for Study of ‘Abortion Pill Reversal’, NPR: MPR News (Dec. 5, 2019), https://www.npr.org/sections/health-shots/2019/12/05/785262221/safety-problems-lead-to-early-end-for-study-of-abortion-pill-reversal.

[14] Id.

[15] Cynthia McFadden, Maite Amorebieta, & Didi Martinez, In Texas, State-Funded Crisis Pregnancy Centers Gave Medical Misinformation to NBC News Producers Seeking Counseling, NBC News (June 29, 2022), https://www.nbcnews.com/politics/supreme-court/texas-state-funded-crisis-pregnancy-centers-gave-medical-misinformatio-rcna34883 (demonstrating the CPC staff member was claiming that blood clots or tissue expelled from the uterus after taking the abortion pill will resemble a baby). NOTE: This statemetn made by a CPC staff member is WILDLY untrue and harmful. Include this statement as an example in the text rather than in a footnote.

[16] Amy G. Bryant & Jonas J. Swartz, Why Crisis Pregnancy Centers are Legal but Unethical, 20 AMA J. of Ethics 269, 271 (2018).

[17] What are Crisis Pregnancy Centers?, Planned Parenthood (Nov. 4, 2021), https://www.plannedparenthood.org/blog/what-are-crisis-pregnancy-centers.

[18] Id.

[19] Bryant & Swartz, supra note 6 at 270.

[20] Id.

[21] Id.; Sam Stroozas, Minnesota, Seen as Abortion Haven, Still Funds ‘Crisis Pregnancy Centers’, MPR News (Jan. 23, 2023),https://www.mprnews.org/story/2023/01/23/minnesota-seen-as-abortion-haven-still-funds-crisis-pregnancy-centers.

[22] Cynthia McFadden, Maite Amorebieta, & Didi Martinez, In Texas, State-Funded Crisis Pregnancy Centers Gave Medical Misinformation to NBC News Producers Seeking Counseling, NBC News (June 29, 2022), https://www.nbcnews.com/politics/supreme-court/texas-state-funded-crisis-pregnancy-centers-gave-medical-misinformatio-rcna34883.

[23] What are Crisis Pregnancy Centers?, Planned Parenthood (Nov. 4, 2021), https://www.plannedparenthood.org/blog/what-are-crisis-pregnancy-centers.

[24] Id.

[25] Attorney General Ellison Issues Consumer Alert About Crisis Pregnancy Centers, Off. Of Minn. Att’y Gen. (Aug. 22, 2022),https://www.ag.state.mn.us/Office/Communications/2022/08/23_CrisisPregnancyCenters.asp.

[26] Sam Stroozas, Minnesota, Seen as Abortion Haven, Still Funds ‘Crisis Pregnancy Centers’, MPR News (Jan. 23, 2023),https://www.mprnews.org/story/2023/01/23/minnesota-seen-as-abortion-haven-still-funds-crisis-pregnancy-centers.

[27] Attorney General Ellison Issues Consumer Alert About Crisis Pregnancy Centers, Off. Of Minn. Att’y Gen. (Aug. 22, 2022),https://www.ag.state.mn.us/Office/Communications/2022/08/23_CrisisPregnancyCenters.asp.

[28] Amy G. Bryant & Jonas J. Swartz, Why Crisis Pregnancy Centers are Legal but Unethical, 20 AMA J. of Ethics 269, 273 (2018); What are Crisis Pregnancy Centers?, Planned Parenthood (Nov. 4, 2021), https://www.plannedparenthood.org/blog/what-are-crisis-pregnancy-centers.

[29] Cynthia McFadden, Maite Amorebieta, & Didi Martinez, In Texas, State-Funded Crisis Pregnancy Centers Gave Medical Misinformation to NBC News Producers Seeking Counseling, NBC News (June 29, 2022), https://www.nbcnews.com/politics/supreme-court/texas-state-funded-crisis-pregnancy-centers-gave-medical-misinformatio-rcna34883.

[30] Cathy Wurzer, Sam Stroozas, & Alanna Elder, Abortion Rights Advocates Push to End State Funding for ‘Crisis Pregnancy Centers’, MPR News: Minn. Now (Jan. 23, 2023), https://www.mprnews.org/episode/2023/01/23/abortion-rights-advocates-push-to-end-state-funding-for-crisis-pregnancy-centers.

[31] Sam Stroozas, Minnesota, Seen as Abortion Haven, Still Funds ‘Crisis Pregnancy Centers’, MPR News (Jan. 23, 2023),https://www.mprnews.org/story/2023/01/23/minnesota-seen-as-abortion-haven-still-funds-crisis-pregnancy-centers.

[32] See Positive Pregnancies, H.F. 289, 2023 Minn. Leg. §145.4235(2)(b)–(c) (Minn. 2023) (as introduced).

[33] Positive Pregnancies, H.F. 289, 2023 Minn. Leg. §145.4235(1)(a) (Minn. 2023) (as introduced).

[34] Positive Pregnancies, H.F. 289, 2023 Minn. Leg. §145.4235(1)(c)(4) (Minn. 2023) (as introduced).

[35] Positive Pregnancies, H.F. 289, 2023 Minn. Leg. §145.4235(3)(a)(3) (Minn. 2023) (as introduced).

*Lizzy Miller is a staffer for JLI Vol. 41.

Biden’s Private Prison Ban Must Include ICE Detention

By jlieditors

By Katie McCoy*

Our incarceration-focused immigration system needlessly locks up hundreds of thousands of noncitizens each year. The number of people incarcerated in Immigration and Customs Enforcement (ICE) custody was 15,000 when President Biden first took office, and it now hovers near 29,000. Sixty-nine percent of those detained have no criminal history. Many ICE detention facilities are located in rural and remote areas, making it much more difficult for noncitizens to secure representation and to win relief against deportation.

Despite President Biden’s promise to end federally-contracted, for-profit private prisons, this executive order failed to include ICE detention centers. The criminalization of migration and mass incarceration of noncitizens must end, and one crucial first step in doing so would be to extend the ban on privately contracted prisons to include ICE detention centers.

ICE Detention Relies Heavily on Private, For-Profit Corporations and Is Wrought with Abuse

Because President Biden’s executive order bans only the Department of Justice (DOJ) from continuing contacts with privately operated criminal detention facilities, no such limitation was extended to ICE detention facilities, which operate under the Department of Homeland Security. Excluding ICE detention from the executive order fails to address the root problem. Where 10% of the U.S. prison and jail system relies on private prisons, 79% of people detained in ICE custody were held in private prisons in September 2021. And by creating this loophole for private contractors, former DOJ facilities are merely being repurposed into privately-contracted ICE detention centers when their DOJ contracts are phased out.

Privately contracted ICE detention centers lack necessary oversight to prevent abuses and human rights violations. Although any carceral setting is prone to abuse, abhorrent conditions and inadequate access to medical services have been well-documented in for-profit immigration detention. One of the most notorious examples of medical abuse occurred at the Irwin County Detention Center in Ocilla, Georgia, where many women underwent unnecessary and invasive gynecological surgeries without their informed consent. ICE knew about the abusive medical practices at Irwin, a county-owned prison operated by for-profit private company LaSalle Corporations, as early as 2018, but it wasn’t until May 20, 2021, nearly one year after these reports gained international attention, that Secretary Alejandro Mayorkas directed ICE to discontinue use of Irwin and another facility with well-documented abuse of migrants.

On top of the grave violations of basic human rights that occur in immigration detention, private detention poses a huge financial drain. County governments paid to hold noncitizens in county jails typically receive more than $100 per day, per detainee. Biden’s budget for fiscal year 2022 ensures funding for 32,500 beds, incentivizing ICE to keep at least that many individuals detained at any given time. Yet the U.S. Government Accountability Office recently reported that ICE failed to take a “strategic approach to these decisions and has spent millions of dollars a month on unused detention space.”

For-profit detention corporations continue to profit off noncitizens’ incarceration with little government oversight. Even as conditions in detention deteriorate, the federal government has remained reluctant to ban for-profit corporations from operating ICE detention centers.

Despite State Attempts to Limit Immigration Detention, Federal Action Is Needed

In the absence of federal action, at least five states—California, Illinois, Washington, Maryland, and New Jersey—have taken abolition into their own hands, banning or limiting state officials from contracting with ICE. This legislation has been met with resistance. Geo Group, one of the leading for-profit prison companies, and the DOJ challenged the legality of California Assembly Bill 32, which phased out all private detention contracts in the state. In a split decision, the Ninth Circuit held that the California law conflicts with broad “federal power and discretion given to the Secretary [of Homeland Security] in an area that remains in the exclusive realm of the federal government . . . .” In contrast, a federal judge dismissed a lawsuit brought by two counties challenging the Illinois Way Forward Act, which bans all immigration detention within the state. Here, the judge found the State validly exercised sovereign immunity to ban political subdivisions, or counties, from contracting with ICE to detain noncitizens. These challenges prove that while states may lead the movement to end for-profit detention, federalism concerns may require action from the federal government.

Even when states have successfully passed legislation phasing out ICE detention, ICE has retaliated against noncitizens by transferring them from closing facilities near loved ones to remote detention centers, particularly those in the rural south. After New Jersey passed legislation barring county officials and private detention companies from signing new ICE contracts, ICE began transferring individuals in New Jersey facilities to other states in the middle of the night, separating them from all support systems and access to legal services.

For example, Patrick Julney, born in Haiti, came to the United States as a young child. He made a life for himself in New Jersey, but in 2019, ICE arrested, detained, and placed him in deportation proceedings. Mr. Julney spent nearly two years detained in Bergen County, New Jersey, and made public allegations about abusive conditions in Bergen County Jail. Shortly before Bergen was scheduled to close, ICE transferred Mr. Julney to Louisiana, far away from his partner and legal counsel.

The American Civil Liberties Union (ACLU) and National Immigration Project of the National Lawyers Guild (NIPNLG) sued ICE to prevent transfers from the Essex County Correctional Facility, demanding ICE conduct individual evaluations for release and, only if transfer was necessary, require ICE to keep noncitizens within a reasonable proximity to their legal service providers. Rather than preventing the transfers, however, the judge blamed activists’ success in shutting down these facilities as “not well thought out,” resulting in unwanted–but not unlawful–consequences for incarcerated noncitizens. No protection against transfers was granted, and people were transferred to ICE detention facilities across the country.

Similarly, in Illinois, more than 30 people were transferred to immigration detention in Indiana, Oklahoma, and Texas. At least one of these detention centers had confirmed COVID-19 cases, demonstrating the heightened risk transfers pose during the pandemic on top of the mental and emotional harms and due process concerns.

Conclusion

These transfers and challenges to state legislation demonstrate the need for President Biden to fulfill his campaign promise and end for-profit ICE incarceration nationally. This measure would have widespread support, as a recent poll by the ACLU and YouGov found that 68% of voters want the government to cease all contracts with for-profit private detention corporations. Additionally, ICE must utilize the Guidelines for the Enforcement of Civil Immigration Law, issued by Secretary of Homeland Security Alejandro Mayorkas, to make an individualized assessment whether a noncitizen’s incarceration is necessary. ICE should make reasonable efforts to keep people close to their families, communities, and to preserve access to legal services.

*Katie McCoy, University of Minnesota Law School Class of 2022, JLI Vol. 40 Managing Editor

Injured on the Job: Minnesota Case Presents Opportunity to Address Employment Rights of Medical Cannabis Users

By jlieditors

Grace Moore*

The United States Supreme Court seems poised to consider the case of an employee injured in Mendota Heights, Minnesota that could settle a dilemma in employment law that has divided state courts and denied injured workers their employment rights. In Musta v. Mendota Heights Dental Center (“Musta”), the Minnesota Supreme Court determined that the federal Controlled Substances Act (CSA) preempted an order under the Minnesota Workers Compensation Act (MWCA) requiring an employer to reimburse the costs of medical cannabis for an employee who has lived with chronic pain from her work injury for over sixteen years. This reimbursement question has divided the State Supreme Courts who have encountered it. The Minnesota Supreme Court went even further than workers’ compensation in Musta and implicated Minnesota’s medical marijuana antidiscrimination statute, declaring that employers are also not required to provide accommodations for an employee’s state-sanctioned use of medical cannabis. The U.S. Supreme Court and the Department of Justice now have the opportunity to determine the employment rights of injured workers. They could also address the broader untenable tension between the federal prohibition on all marijuana and the majority of state governments that have approved the use of cannabis medically by addressing the schedule status of cannabis under the CSA. The Minnesota Supreme Court has declared that it cannot protect the rights of employees at work who follow state law and use reasonable and necessary means to treat their medical conditions absent federal action, and Minnesotans—and all Americans—living with work injuries and other serious conditions deserve to have their rights protected. The U.S. Supreme Court and the Biden Administration have an opportunity to resolve a state court split that hurts already-injured workers and can seize the chance to change cannabis’ Schedule I status to protect patients and employees across the country.

State-Approved Medical Cannabis Laws at Odds with Federal Prohibitions

Cannabis for medical use was first legalized in California in 1996. Now, thirty-seven states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands have all legalized medical cannabis. A number of states that have legalized medical marijuana have also adopted antidiscrimination provisions regarding its use, including Minnesota. In the employment context, Minnesota’s antidiscrimination statute provides that an individual’s status as a registered patient on the medical cannabis registry cannot be the basis for hiring, termination, or any other decisions that affect the terms or conditions of employment. However, the statute does not require compliance if doing so would cause an employer to violate federal law or lose federal funding. Despite the majority of states approving of medical cannabis use, marijuana is still classified federally as a Schedule I controlled substance under the CSA, so it remains federally illegal for all uses in the United States.

This disconnect between the federal prohibition against all marijuana and the majority of states’ movements to legalize cannabis for medical—and increasingly recreational—use and protect patients from discrimination has led to countless regulatory quagmires. For workers who were injured on the job and require medical cannabis to treat their conditions, this tension has led to a state court split over whether employers can be required to reimburse the cost of the medical marijuana and what accommodations injured employers can receive. The unresolved conflict between state and federal law has created a murky legal landscape that serves only to hurt injured workers further.

Minnesota Supreme Court Declines to Require Reimbursement, Defers to Legislature

In October 2021, the Minnesota Supreme Court had the chance to choose a side in the emerging split and address the rights of injured workers to receive workers’ compensation reimbursement for their state-sanctioned medical cannabis use. Before Musta v. Mendota Heights (and its companion case Bierbach v. Digger’s Polaris) was decided, six states—including Minnesota—expressly allowed workers’ compensation reimbursement for cannabis. Six states had expressly forbid reimbursement, 14 did not require it, and 10 states as well as the District of Columbia have yet to decide the issue.

In Musta, the Minnesota Supreme Court switched course and determined that state law cannot protect the employment rights of injured workers; employers cannot be forced to reimburse the costs of reasonable and necessary medical marijuana for those who were hurt on the job. Susan Musta was employed as a dental hygienist by Mendota Heights Dental Center when she injured her spine attempting to catch an elderly patient who was falling. For the next 16 years, she sought medical assistance countless times to treat her unrelenting pain, but nothing was effective. Musta was ultimately approved to be placed on the medical cannabis registry. When she requested reimbursement—as was her right under Minnesota’s Workers Compensation Act—her employer agreed that the medical marijuana was reasonable and necessary for her work injury, but they asserted that the CSA preempted an order requiring reimbursement for medical marijuana.

The Minnesota Supreme Court agreed with the employer and denied Musta reimbursement. The court reasoned that it is impossible for employers to comply with both the CSA and the MWCA, as reimbursing the costs of medical marijuana constitutes “aiding and abetting” the possession of marijuana. This would theoretically subject the employer to liability under the CSA. The court considered this “impossibility preemption” and determined that the CSA preempts any such state order. This decision shifted Minnesota onto the side of the state court split that will not protect workers’ rights—even in the face of explicit state support for such rights—absent federal action.

Indeed, the Musta court went even farther than workers’ compensation in denying protections to injured workers. Employees who use medical marijuana to treat their medical conditions are likely not protected by federal anti-discrimination legislation; the Americans with Disabilities Act (ADA) prohibits discrimination based on an individual’s disability, but the argument that discrimination on the basis of medical marijuana use is discrimination on the basis of disability has yet to succeed in court. What protections employees receive, they must get from state antidiscrimination statutes. The Musta court declared that “the state cannot force an employer to facilitate an employee’s unlawful possession of cannabis, either through work accommodations or reimbursement for its purchase” (emphasis added). The court does not explicitly discuss Minnesota’s medical cannabis antidiscrimination statute, though it implicitly answers the question of whether refusing to provide an accommodation for an employee’s use of medical cannabis could constitute discrimination on the basis of the employee’s disability in the negative. The majority declared—though seemingly in dicta—that employers cannot be required to provide accommodations, so they would plainly not consider the refusal to do so as discrimination. The court seemed to signal that the exception in Minnesota’s antidiscrimination statute now likely swallows the rule; employers do not have to comply if doing so would cause them to violate federal law, and the court has chosen a broad interpretation of “aiding and abetting” liability that would allow noncompliance, at least in reimbursement contexts. Employees who are patients legally registered in Minnesota’s medical cannabis program cannot expect the courts to protect their state-supported participation in it.

Justice Chutich, in a strong dissent in Musta, argued that there was no conflict preemption and the majority had an “unduly expansive view of aiding and abetting liability, with the result of denying injured employees reasonable and necessary medical treatment.” The majority even tacitly acknowledged that their decision hurts injured workers, but they emphasized the court will not uphold medical cannabis provisions in the absence of federal congressional action. The court concludes, “we note the argument by the dissent that preemption here frustrates the intention of the Legislature to make medical cannabis available to patients suffering from intractable pain. We agree that if the result here is not beneficial to the employee, the remedy is for Congress to pass, and the President to sign, legislation that addresses the preemption issues created by the conflict between federal and state law.”

Susan Musta is now hoping the U.S. Supreme Court will hear her case. The Court is being urged to end the state court split that has left injured workers unsure of their protections in the workplace, and an amicus brief has been filed calling for the Court to use this opportunity to estop cannabis’ designation as a Schedule I substance altogether. While Justice Thomas recently criticized the federal government’s approach to cannabis law in a denial of cert and indicated that “a prohibition on intrastate use or cultivation . . . may no longer be necessary or proper,” it is unclear how the current conservative Supreme Court would rule on a case like Musta.

Conclusion

The Supreme Court seems poised to take action on Susan Musta’s appeal. On February 23, 2022, the Court asked the Department of Justice to file the executive branch’s position on the case. Biden’s Administration now has the chance to weigh in on the rights of patients in a country where the majority of states have expressed their approval of medical marijuana. Workers like Susan Musta must have their employment rights protected, and the thousands of participants in medical marijuana programs must also have their rights vindicated federally. Many Americans have expressed their approval and desire for legal marijuana. Over 30,000 patients are currently enrolled in Minnesota’s medical cannabis program. Though the Minnesota legislature has sought to protect individuals who use medical cannabis to treat their medical condition, the Minnesota Supreme Court and multiple other states have declared they cannot—or will not—protect them in the workplace. The Supreme Court and the Department of Justice must take this opportunity to vindicate the rights of injured workers and solve the untenable tension between state and federal law caused by cannabis’ Schedule I status.

*J.D. Candidate, University of Minnesota Law School Class of 2023, JLI Vol. 40 Staff Member

A Healthy Start: Minnesota Is Pioneering an Alternative to Prison Nurseries, and Other States Should Follow Its Lead

By jlieditors

by Rachel Pokrzywinski*

In May 2021, Governor Tim Walz signed Minnesota’s Healthy Start Act (HSA) into law. The first of its kind in the United States, the HSA authorizes placement of pregnant and postpartum inmates into alternative housing—such as halfway houses and residential treatment facilities—with their newborns for up to one year after birth. Previously, incarcerated mothers in Minnesota could expect their newborns to be taken away within 72 hours of birth. This law is only one step toward addressing the many harms suffered by incarcerated women—who are disproportionately Black, Latina, and Native American—in the United States, but it is one that lawmakers across the country should follow.

In the decades after the first female prison opened its doors in 1839, women’s prisons generally fell into two categories: reformatories that forced women to conform to gendered ideas of proper behavior and custodial prisons where women were forced to perform domestic labor. In states with both, sentencing decisions were based primarily on race; women of color were disproportionately sentenced to custodial institutions for relatively less serious crimes. In the post-Civil War South, many states operated penal plantations where judges sentenced prisoners—predominately Black men and women—to labor under former slaveowners.

Although treatment varied across institutions, prisons of all kinds have long been sites of abuse, from physical and sexual abuse to solitary confinement and inadequate healthcare. However, inmates who could become pregnant faced—and continue to face—unique harms.

In Menacing (Re)Production: The Commodification and De-Commodification of Incarcerated Black Women’s Wombs and Work, Talitha L. Leflouria tells the story of Eliza Randall, a Black woman who was sentenced to a penal plantation in 1892. Shortly after her sentence began at Georgia’s Camp Heardmont prison plantation, she gave birth to a son. Valuing Randall’s labor over the life of her child, prison overseers killed him and forced her to continue working. Today, while prisons continue to value labor over life, the majority of incarcerated mothers lose their children not to death but to those outside prison walls.

The harms incarcerated women suffer are not limited to those that occur after pregnancy. In 1907, Indiana passed America’s first eugenics based sterilization statute. Thirty states soon followed, with California leading the pack. In California alone, over 20,000 people were sterilized by force or coercion between 1909 and 1979. The primary targets were disabled and incarcerated Black, Latina, and Native American women. Even after California’s sterilization law was repealed in 1979, the state continued to perform involuntary sterilizations well into the twenty-first century.

Lack of proper prenatal care, including policies that promote shackling of women before and during birth, is another widespread harm that persists to this day.

Today, lawmakers across America are taking steps to address these and other infringements upon the reproductive rights of incarcerated women. Although it remains legal under Buck v. Bell, federal law has created some protections against forced sterilization, including a prohibition on the use of federal funds to sterilize inmates. In 2021, California joined the ranks of North Carolina and Virginia in offering reparations to survivors of its forced sterilization programs. Additionally, 32 states and the federal government have passed laws restricting the use of restraints, including shackling, during birth.

Lawmakers must continue to recognize the reproductive rights of incarcerated women and address the harm caused by separating newborns from their incarcerated mothers.

A 2017 study found that “mothers who lost custody of a child to foster care experienced significantly higher rates of depression [and] substance use . . . compared to mothers surviving the death of a child.” Data from the Pregnancy in Prison Statistics Project suggests that 11% of children born in prisons are placed into foster care. However, similar psychosocial effects may be suffered even when children are placed with family or other designated individuals. In Minnesota, Department of Corrections data suggests that about 56% of caregivers never bring children to visit their mothers in prison. .

When an incarcerated parent wants to have a relationship with their child, separation causes immense pain and strains relationships. “I feel like I have a hole in my chest,” one mother who hasn’t seen her child since she gave birth stated, “like a part of my life is missing.” Others have reported feeling alienated from their children upon release.

Only nine states have sought to protect incarcerated mothers’ rights to raise their children. By establishing prison nurseries, these states allow qualifying mothers and their newborns to live together, typically for 12 to 18 months after birth, in a separate wing of a prison or correctional facility that houses only mothers and their children. However, a prison—even a prison nursery—is not suited for raising a child. In addition to stress from caring for a baby, incarcerated mothers face constant surveillance and the lack of autonomy inherent to incarceration. In light of these reports, one can imagine how these mothers may feel that they are not really allowed to be a parent. They may fear that, by choosing to keep their child, they are exposing them to a dangerous environment.

In Minnesota, the HSA will have a particularly profound effect for Native American women. According to the Minnesota Department of Corrections, 278 pregnant women received prison sentences in Minnesota between 2013 and 2020. Despite making up only 1.4% of the state’s population, 34% of those pregnant women were Native American. Black women were similarly overrepresented at 12%, despite Black people making up only 7% of Minnesota’s population. Nationally, an estimated 58,000 pregnant women are admitted into prisons and jails each year. Because these racial disparities are also present on a national scale—Black, Latina, and Native American women are overrepresented in prison populations nationwide—we can assume that they are also overrepresented among pregnant inmates nationally.

While the HSA is too new to definitively predict its impact, it appears evident that it should create better health outcomes for mothers. Under the HSA, mothers placed in alternative housing beyond prison walls may experience all the benefits of a prison nursery without any of the pitfalls of attempting to parent a child in a prison environment.

Perhaps the greatest challenge facing the HSA in other jurisdictions is its ability to scale to larger prison populations. It may require impracticable oversight or unavailable funding. However, future data about the amount of inmates who participate and the relative cost of the program may put this challenge to rest.

Ultimately, the damage done to mothers—predominantly Black, Latina, and Native American mothers—by the American penal system is too great to repair with just one law. However, the HSA is an essential step in the right direction. In the wake of Minnesota’s landmark Act, lawmakers across the country should look to their own prison populations, consider the harms these populations and their families face and the steps that must be taken to prevent them, and follow Minnesota’s example.

*J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Executive Editor

Insurer Liability for Discriminatory Policies: Can Insurers as Agents of the Employer Be Liable Under Title VII?

By jlieditors

By Elizabeth Wellhausen*

In 1964, President Lyndon B. Johnson signed into law the Civil Rights Act of 1964. One section of the Act, referred to as Title VII, made it illegal for an employer to discriminate against an individual because of their race, color, religion, sex, or national origin. However, the courts have struggled to determine what entities are considered “employers” under the Act.

When Congress enacted Title VII, it created The Equal Employment Opportunity Commission (EEOC) and charged it with enforcing Title VII. The EEOC takes the stance that an “agent of a covered entity is liable for the discriminatory actions it takes on behalf of the covered entity.” Conversely, a covered entity is liable for the actions of its agents. According to the EEOC, agents can be insurance providers, benefits administrators, and pension plan administrators, among other things. However, the EEOC’s interpretation of Title VII is not binding. While some courts have followed the EEOC’s interpretation that insurance providers can be liable under Title VII, other courts have held that insurance companies are not employers or agents of the employer. The latter interpretation fails to effectuate Title VII’s full purpose of protecting against discrimination in the workplace by allowing insurance companies to evade liability for discriminatory health insurance policies.

The Sixth Circuit is an example of a court rejecting the assertion that an insurance company could be liable under Title VII. In Peters v. Wayne State Univ., female university employees brought a Title VII suit on the grounds that the retirement benefits plan was discriminatory. The retirement benefits plan included a monthly annuity payment that was calculated from sex-segregated mortality tables. There was actuarial data that found that women lived longer than men, so the plan gave female annuitants a smaller monthly payment than similarly situated male annuitants.

While the district court found that the plan’s administrator, Teachers Insurance and Annuity Association, was an employer under Title VII, the Sixth Circuit called this characterization “clearly erroneous.” The court reasoned that Teachers Annuity’s role was limited to management and reimbursement of annuities. Additionally, since Wayne State did not exercise any control over Teachers Annuity’s administrative plans, there was not sufficient control to constitute an agent-principal relationship. Teachers Annuity alone decided to use the mortality tables and therefore was not under the control of Wayne State. The court went on to cite the Supreme Court case City of Los Angeles, Dept of Water and Power v. Manhart by stating that “(Title VII) was not intended to revolutionize the insurance and pension industries.” In the end, the Sixth Circuit refused to hold that an insurance company could be liable for simply providing insurance services.

The Second Circuit in Spirt v. Teachers Ins. & Annuity Ass’n had very similar facts to Peters v. Wayne State Univ., but the Second Circuit ultimately found that the Teachers Ins. & Annuity Ass’n and College Retirement Equities Fund (TIAA-CREF) was liable as an employer. In Spirt, female retirees asserted that the retirement fund was discriminatory on the basis of sex because they received smaller monthly retirement payments than male retirees even though they had made equal contributions. The court found that the TIAA-CREF was an employer because the term “employer” was meant to encompass “any party who significantly affects access of any individual to employment opportunities . . .” Since the TIAA and CREF existed solely to provide university employees retirement benefits, the court held that it was an employer for Title VII purposes. The court also considered it relevant that the plan was mandated for some employees and that the university shared in some administrative responsibilities.

Another case frequently cited to support the agency connection between an insurer and employer is Carparts Distrib. Ctr. v. Autho. Wholesaler’s Ass’n. In Carparts, the First Circuit articulated several different circumstances when an issuer can be considered an employer for Title VII purposes. First, the insurer would be considered an employer if it exercised control over an important aspect of employment. Second, the insurer would be considered an employer if it existed solely for the purposes of enabling the covered entity to delegate health insurance provider responsibilities. The court noted that relevant inquiries include the level of control that the insurer had over determining the level of benefits and whether the covered entity (in this case, Carparts) shared in the administrative responsibilities. The court stated that sharing administrative responsibilities would suggest that the insurer was an employer. The court also noted that even if the insurer did not determine the level of benefits or share in administrative responsibilities, it could still be liable if it acted as an agent. Thus, the insurer could be liable if it administered health benefits on behalf of the covered entity. This is arguably the broadest interpretation which would cover many insurers as employers.

Recent court opinions have not looked favorably upon the broad coverage granted by the Carparts court. Two courts recently discussed this issue in the context of denied insurance coverage for gender dysphoria treatment. In Baker v. Atena Life Ins. Co., the Northern District of Texas decided that the plaintiff had not stated a claim that the insurer was her employer. The court rejected the agency theory in this situation, instead, stating that to be an employer, the entity has to have authority with respect to employment practices. The court read this as requiring the insurer to satisfy the “single employer” test or the “hybrid economic realities/common law control” test. Each of these tests is a higher standard than the agency theory and creates a higher burden for the plaintiff.

The Western District of Wisconsin also decided a case regarding insurer liability when the insurer does not cover gender dysphoria treatment. In Boyden v. Conlin, the plaintiffs were employees of the University of Wisconsin–Madison. The State of Wisconsin Group Insurance Board (GIB) set the Employee Trust Funds’ (ETF) policy and helped oversee administration of the health insurance plans. Dean Health Plan, Inc. (Dean) was a health insurance administrator. In a 2017 ruling, the court concluded that Dean was not a proper defendant under Title VII since it only administered the plan and had no discretion to determine the health benefits covered. In doing so, the court rejected a reading of Carparts that would allow administrators to be liable as agents, stating that this was not the interpretation that Congress intended. The court decided to follow the Fifth and Sixth Circuit by requiring that the agent have authority or control to make employment decisions on behalf of the employer.

However, the court left open the possibility that GIB and ETF could be proper defendants. In 2018, the court decided that GIB and ETF were proper defendants. The court reasoned that GIB was solely responsible for setting health insurance for state employees and that Title VII could not be used to allow the only entity responsible for the policies to skirt liability. Additionally, the court noted that “ETF’s role in administrating the Group Health Insurance Program makes it a proper defendant on plaintiff’s Title VII claim.”

The court also noted that ETF made recommendations to GIB for policy inclusions and exclusions and had been statutorily delegated the role of administration which provides a sound basis to hold that it is an agent of the employer. These two decisions in the same case seem at odds; however, the court probably determined that ETF and GIB had more discretion in creating the policy while Dean only administered the plan.

Future decisions will likely be based on what constitutes sufficient control over employment terms or practices. However, courts could determine that administration power is sufficient and follow the Carparts interpretation while other courts may determine that the insurer needs to have more control over setting the policy terms to have sufficient control and be labeled an agent of the employer. The recent decisions from the Northern District of Texas and the Western District of Wisconsin seem to support the conclusion that self-insured plans where the employer sets the terms and the insurance company is only an administrator does not create an agent-principal relationship. However, the 2018 Boyden v. Conlin decision seems to suggest that an insurer may be liable for a fully insured plan where the insurance company sets the terms of insurance. Regardless, employers and insurers that deny treatment (such as a vaginoplasty, mastectomy, or hormone treatment) to individuals for gender dysphoria under the premise that the treatment is not “medically necessary” while allowing the same treatment for other conditions should reconsider this decision as this practice could be violating Title VII.

* Elizabeth Wellhausen, J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Staff Member

A Constitutional Necessity, Not a Luxury: States Must Provide Public Defender Offices With More Resources to Provide Indigent Defendants With Effective Counsel

By jlieditors

By Haashir Lakhani*

The phrase “you have the right to an attorney” is so ingrained in our social conscience that we perhaps do not even give it a second thought. The task of upholding this right for indigent defendants falls largely on public defenders, with some cases being assigned to other court-appointed attorneys. However, underfunded and overworked public defender offices are often burdened with incredibly high caseloads, which begs the question: are states actually upholding indigent criminal defendants’ right to counsel?

The right to legal counsel for criminal defendants arises out of the Supreme Court’s interpretation of due process under the Constitution. The two landmark cases on this issue are Powell v. Alabama and Gideon v. Wainwright. Powell, a 1932 case, involved nine Black youths who were all accused of raping two White women. The defendants were rushed through proceedings and sentenced to death by an all-White jury, except for the youngest, who at only twelve years old was sentenced to life in prison without parole. Two defense lawyers were provided, as was required under Alabama law for death penalty cases, but they were only appointed the morning of trial and as such had no time to investigate or build their defense. The Supreme Court overturned the defendants’ convictions, ruling that the defendants were not provided with their right to counsel “in any substantial sense”.

Because the holding in Powell was restricted to capital proceedings, the right to counsel would not be extended to non-capital cases until 31 years later in Gideon v. Wainwright. In this case, Gideon was charged in Florida state court for felony breaking and entering. The trial judge in the case refused Gideon’s request for a lawyer and he was subsequently convicted and sentenced. Gideon, utilizing the prison library, petitioned the Supreme Court to hear his case. The Supreme Court agreed to hear his case and appointed him a lawyer. In a unanimous decision, the Supreme Court held that the Sixth Amendment’s effective assistance of counsel requirement is enforceable against the states through the Fourteenth Amendment’s due process clause. In short, the Supreme Court ruled that criminal defendants have the right to counsel under the Constitution and that states must provide a lawyer if the defendant cannot afford one. Justice Black went so far as to state that lawyers in criminal cases are “necessities, not luxuries”.

One relatively new approach to determining if defendants are receiving effective defense counsel is to look deeply at the data surrounding the workload of public defenders. Using a comprehensive survey of private defense lawyers and public defenders, a baseline was established for how many hours are necessary to represent clients in various types of criminal cases. Perhaps unsurprisingly, subsequent studies on the workload of public defenders have shown the discrepancies between this baseline and the reality on the ground. In Missouri, Colorado, and Rhode Island, public defenders had two to three times the workload they should have been limited to in order to provide effective counsel. Likewise in Louisiana, public defenders had almost five times the recommended workload. These heavy workloads are representative of the reality faced by many public defender offices, and often lead to the job being unsustainable for many attorneys.

The other side of this equation is that public defender workloads are so high because they are understaffed and underfunded. According to Minnesota State Public Defender William Ward, his office would need to hire 149 more attorneys and 112 support staff in order to meet national standards for public defender caseloads. Even those standards are arguably outdated as they were developed before the regular use of body cams, smartphones, and other technology that adds time to the discovery process.

Another issue with retention in public defender offices is the salary. Public defender offices are often unable to provide competitive salaries due to budget constraints and this leads to them losing out on new hires, sometimes to prosecutor offices. This inequality of resources between public defender and prosecutor offices creates problems with access to justice for defendants, something that prosecutors themselves acknowledge as an issue. A potentially powerful way to advocate for pay parity between public defenders and prosecutors was put on display in New York City as both groups of lawyers utilized collective bargaining to advocate for and achieve a gradual move towards pay parity.

Collective bargaining was recently utilized in Minnesota where the oppressive workload for public defenders culminated in Minnesota Public Defenders voting to authorize a strike just a few weeks ago. The unionized attorneys and the Minnesota Board of Public Defense were able to come to an agreement that includes cost of living increases through 2023 and the unionized public defenders will vote on the agreement within the next two weeks. This agreement does not provide a particularly long-term solution, but it does provide some respite for public defenders in Minnesota until more institutional budget changes can be made on the state level and it highlights the potential power of collective bargaining.

Public defenders play a vital role in upholding the constitutional rights of indigent defendants. However, due to being underfunded and overworked, public defender offices face challenges in providing representation to their clients. In order to rectify this situation, state and county governments must be willing to provide public defender offices with the resources and budget to properly provide their clients with their constitutionally guaranteed right to effective counsel. It is time for states to loosen their purse strings and treat indigent criminal defense as the constitutional necessity it is and not as a luxury.

*Haashir Lakhani, J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Co-Lead Symposium Editor

Ignoring Inequalities and Refusing to Consider Consequences: The Supreme Court’s Blocking of OSHA’s Emergency COVID Standard

By jlieditors

By Brandon Vaca^[1]

On January 13, the six conservative Justices on the U.S. Supreme Court stayed (blocked) and effectively struck down the Occupational Safety and Health Administration’s (OSHA’s) emergency vaccine-or-test standard (Standard) for employers.^[2] The Court’s reasoning in its unsigned opinion ranges from vexing to troubling. As the three dissenting Justices pointed out, the Court read limitations into the relevant statute.^[3] To get from its statutory interpretation to its decision to stay the Standard, the majority had to ignore basic inequalities at the workplace and obscure the Standard. Moreover, the Court’s argument exonerates the Justices from considering the possibility that thousands could die because of their discretionary decision. Regardless of how the COVID-19 pandemic and safety measures develop, the Court’s opinion is remarkable because it is silent about inequalities at the workplace and because it lays a path for the Court to ignore the consequences of its decisions to stay government action.

The Standard applied only to workplaces and permitted medical and religious exemptions to vaccination.

The Standard only applied to the workplaces of employers with 100 or more employees.^[4] These employers had two options: (1) require employees who did not have a legally-recognized medical or religious exemption to be vaccinated against COVID-19 or (2) institute a mandatory testing and masking policy.^[5] Though the Standard allowed employers to pass the cost of COVID testing on to their employees, it did not prevent any other laws, rules, or agreements requiring an employer to foot the bill.^[6] The Standard would have provided a much-needed safety minimum for most of the country’s workplaces and, most importantly, OSHA estimated that the “standard would save over 6,500 lives and prevent over 250,000 hospitalizations.”^[7]

The Court’s vexing statutory interpretation.

The majority, by emphasizing certain words in the OSH Act (the statute that created OSHA),^[8] determined that the Standard exceeded OSHA’s statutory authority.^[9] For example, the Court emphasized that the statute directs the Secretary of Labor to set “occupational safety and health standards” (italics added by the Court) and permits the Secretary to issue an ETS to protect “employees.”^[10] While the parties in the case agreed that terms like “occupational” and “employees” restrict OSHA’s regulatory authority to the nation’s workplaces,^[11] the majority went farther. The Court concluded that, because the statute contains terms like “occupational” and “employees,” OSHA can only regulate hazards that are particular to workplaces, i.e., hazards that are not encountered (at least to the same “degree and kind”) outside the workplace.^[12] This is a vexing interpretation because, as the dissent points out, the statute does not mention any such requirement and existing OSHA rules already address common hazards like fire, excess noise, and unsafe drinking water when experienced on the job.^[13]

To block the Standard, the Court had to ignore basic inequalities at the workplace.

To get from the Court’s statutory interpretation to issuing a stay, the majority had to overcome two problems. First, the Court had to assert that there is nothing unique about an employee’s risk of exposure to COVID at work compared to a person’s risk of exposure outside of work. Second, the Court had to account for existing OSHA regulations that seemingly contradict its statutory interpretation.

Arguing that the risk of exposure to COVID at work is no different than other areas of life, the Court claimed the following without citing any data.

Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.^[14]

The Court’s reasoning here ignores the power of employers over employees, despite both OSHA and the dissent specifically pointing out this disparity.^[15] Unlike a spectator attending a sporting event, employees can be required to physically attend their workplace and to interact face-to-face with customers who refuse or are not required to take COVID precautions. For many, physically going to work is not optional, and this is especially true for workers in households with lower incomes. Once at their job, employees cannot control their workplace. Even if employees are unionized and can negotiate with their employer for safe work conditions, employers are not required to meet a union’s demands. If an employer lets employees work unmasked and unvaccinated, an employee cannot control whether their unmasked colleague works near them. Nor can the employee control whether their colleague comes to work sick, which some employers are reportedly forcing their workers to do. Employees can also be more likely to come to work sick if they do not have access to paid sick leave, a reality faced by roughly 24 million workers in service occupations (41%) and most workers with part-time jobs—63% of whom are women. Even if an employer attempts to institute COVID precautions like masking or a vaccine mandate, some states have required so many exemptions for workplace COVID precautions that these efforts have little effect. Other states have recently revoked workplace COVID safety standards. The OSHA Standard, on the other hand, would have preempted state laws limiting COVID precautions.^[16]

In its opinion, the Court persistently framed the Standard as threatening to impose a difficult choice on employees who do not want to be vaccinated.^[17] However, the majority ignored the potentially life-or-death choice employees already face when deciding to go to work. This is especially true for those who live with people who are ineligible to be vaccinated—like children under 5 years old—or have increased risk of severe illness because of a medical condition.

The Court “obscure[d]” the Standard to differentiate it from previous OSHA regulations and created contradictory conclusions.

The Court’s interpretation of the OSH Act threatened to overturn existing OSHA regulations that addressed general hazards when faced in the workplace.^[18] The Court addressed these regulations by differentiating them from the Standard.^[19] It did this by “obscur[ing]”^[20] the Standard as a “vaccine mandate” and neglecting to mention in the relevant section of the opinion that the Standard included a mask and test option as well as religious and medical exemptions.^[21]

The dissent contends that OSHA’s mandate is comparable to a fire or sanitation regulation imposed by the agency . . . But a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, “cannot be undone at the end of the workday.” In re MCP No. 165, 20 F. 4th, at 274 (Sutton, C. J., dissenting). Contrary to the dissent’s contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not “part of what the agency was built for.”^[22]

But, the majority later stated that OSHA can require vaccinations for employees in workplaces where the threat of COVID exposure is different in “degree and kind” from “the everyday risk of contracting COVID that all face.”^[23] Again, the Court did not cite evidence indicating what the “everyday risk of contracting COVID that all face” is or how it compares to the workplace.

The result of the Court’s reasoning is a collection of confusing and contradictory conclusions. OSHA cannot regulate general hazards.^[24] But, OSHA can regulate general hazards when encountered at workplaces,^[25] but not if the regulation requires employees to undergo an irreversible treatment like a vaccine^[26] (though this is not what the Standard requires^[27]). Yet, OSHA can require vaccination if the risk from the general hazard is “different in degree and kind” to what the Court believes is the normal risk.^[28]

The Court used its statutory interpretation to avoid considering those who might suffer because of its decision.

The Court blocked enforcement of the Standard by issuing a stay pending appeal.^[29] At the time, the case contending the legality of the Standard (i.e., the case on the merits) was still being heard by the Sixth Federal Circuit. Hearing and deciding cases on the merits, however, can take a long time. In the time it takes for a case to be argued and decided, parties can be harmed by actions that the court ultimately finds to be illegal. This is one reason why courts will consider ordering a party not to do something (i.e., a court will enjoin or stay the party’s action) until the case is decided. That is what happened here with OSHA’s Standard. Decisions about whether to enjoin a party can be decided faster than cases on the merits, which is why this case rapidly rose to the Supreme Court and why the Court was able to decide it so quickly.

The Supreme Court has explained that no party in a case has a right to a stay, even if they might be harmed without one.^[30] Whether or not to issue a stay is up to the discretion of the court.^[31] When deciding whether to issue a stay, courts traditionally consider:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.^[32]

Comparing the relative harm sustained by the parties and the public as a result of issuing an order (like a stay) is often called “balance[ing] the equities.”^[33] The Court has recently stated that “‘before issuing a stay, it is ultimately necessary to balance the equities—to explore the relative harms’ and ‘the interests of the public interest at large.’”^[34]

According to its own precedent, the Court should have balanced the equities in this case. The majority, however, avoided this step. Though stating that “[t]he equities do not justify” refusing to stay the Standard, it did not explain why. Rather, the majority stated that it is “not [the Court’s] role to weigh” the potential harms that blocking or refusing to block the Standard could cause.^[35] Instead, the majority reasoned that, because the Standard exceeds OSHA’s statutory authority, it is the role of Congress to weigh these potential harms. This reasoning treats the majority’s argument that the Standard exceeds OSHA’s statutory authority as binding, i.e., as if its opinion here was a decision on the merits. But this was not a decision on the merits; this was a decision on whether or not to issue a stay. According to the Court’s own precedent, it should have only considered the likelihood of a party’s success on the merits. The majority’s interpretation at this point was not supposed to be the final word on the legality of the Standard.^[36]

What all this suggests is that the Court no longer has to consider who will be hurt by its discretionary decisions staying the enforcement of laws or rules, so long as the Court determines that the law or rule probably exceeds the government entity’s authority. The Court’s technically nonbinding statutory interpretation can exonerate it from considering the life-or-death consequences of its discretionary action. In this, the Court’s blocking of the Standard not only ignores inequalities; but suggests a way for the Court to ignore the consequences of staying government action.

^[1] J.D. Candidate, University of Minnesota Law Class of 2022, JLI Vol. 40 Online Editor

^[2] For excellent discussions on this decision, see Amicus: COVID in the Courtroom (Jan. 15, 2022), https://slate.com/podcasts/amicus/2022/01/andy-slavitt-supreme-court-covid-pandemic; Strict Scrutiny: Putting the F in FDR (Jan. 17, 2022), https://strictscrutinypodcast.com/podcast/f-in-fdr/.

^[3] National Federation of Independent Business v. Department of Labor, 595 U.S. ___, ___ (2022) (per curiam) (Breyer, Sotomayor, and Kagan, JJ., dissenting) [hereinafter Dissent] (slip op. at 6-7).

^[4] National Federation of Independent Business v. Department of Labor, 595 U.S. ___, ___ (2022) (per curiam) [hereinafter Majority] (slip op. at 1).

^[5] Dissent at 3.

^[6] 86 Fed. Reg. 212 at 61553.

^[7] Dissent at 11 (citing 86 Fed. Reg. 61408).

^[8] Dissent at 6-7.

^[9] Majority at 6. The majority also stated that the Standard was an “exercise of powers of vast economic and political significance” that required specifically-worded mandate from Congress. Id. Unfortunately, the Court neglected to discuss what constitutes such an exercise of power and how precise the mandate from Congress must be. Id. As Professor Leah Litman summarized, the Court—in Ron Burgundy-esque fashion—just thought that the Standard was “kind of a big deal” without clear reasons why. See Strict Scrutiny at 41:35.

^[10] Majority at 6.

^[11] Dissent at 6.

^[12] Majority at 6-7.

^[13] Dissent at 7-8.

^[14] Majority at 6-7.

^[15] Dissent at 8-9.

^[16] 86 Fed. Reg. 61551.

^[17] Majority at 1, 5-9.

^[18] Id. at 6-7.

^[19] Id. at 7. The Court does not specifically address whether its statutory interpretation threatens the legal status of OSHA regulations aimed at general hazards.

^[20] Dissent at 3.

^[21] Majority at 7.

^[22] Id.

^[23] Id.

^[24] Id. at 6-7.

^[25] Id. at 7.

^[26] Id.

^[27] Dissent at 3.

^[28] Majority at 7. “Believes” is appropriate here because the Court does not cite evidence supporting its claim that workplace risk of COVID exposure is the same as what all people face. Id. Additionally, the Court ignores evidence suggesting that workplace risk is greater. Dissent at 8-9.

^[29] Majority at 9.

^[30] Id.

^[31] Nken v. Holder, 556 U.S. 418, 427 (2009). Chief Justice Roberts authored the majority opinion in Nken.

^[32] Id. at 426 (emphasis added). See also dissent at *4 citing Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ___, ___ (2020) (per curiam) (slip op., at 2). When the Government is the party opposing the stay, the third and fourth factors merge. Nken, 556 U.S. at 435.

^[33] See, e.g., Holtzman v. Schlesinger, 414 U.S. 1304, 1308-09 (1973) (Marshal, J, Circuit Justice).

^[34] Dissent at 11 (quoting Trump v. International Refugee Assistance Project, 582 U.S. ___, ___ (2017) (per curiam) (slip op., at 10)).

^[35] Majority at 8-9.

^[36] See Nken at 421 (“A stay does not make time stand still, but does hold a ruling in abeyance to allow an appellate court the time necessary to review it.”).

“The Harvest of Solidarity”: Achievements of Black Activists Following the 1921 Duluth Lynchings

By jlieditors

By Brenna Evans[1]

Minnesota’s history with lynchings is a long and bloody one.^[2] Over two dozen lynching attacks stain Minnesota’s history, but none are more infamous than the 1921 lynchings of Isaac McGhie, Elmer Jackson, and Elias Clayton in Duluth.^[3] But one part of this brutal history that is often overlooked is the tireless efforts of the local Black citizens who fought for justice and change following the lynchings. To shed light on the local social justice activists, the first part of this blog post will give a general description of events, while the second part will examine the people at the frontlines of the anti-lynching movement.

1. The Duluth Lynchings

Circa the 1920s, Duluth experienced a boom in its population.^[4] Even with the growth, the Black population during this time still only numbered around 495.^[5] Duluth’s Black population faced similar discrimination there as in the rest of the country, including segregated restaurants, white-only venues, racial covenants, and lower salaries.^[6]

The Duluth lynching was triggered by the arrest of six black men in connection with the alleged rape and assault of a white women named Irene Tusken, though evidence suggests that there was no actual sexual assault.^[7] Once the people of Duluth heard of the alleged attack, a mob formed demanding “justice” and went to find the accused men.^[8]

When the mob reached the police station, the city’s public safety commissioner reportedly commanded the other police officers to holster their weapons so that no one in the crowd would be injured.^[9] A few of the police officers attempted to hold off the crowd, but the mob, armed with ropes and saws, entered the police station. The Police Commissioner turned a blind eye as the mob broke Isaac McGhie, Elmer Jackson, and Elias Clayton out of their cells.^[10] Clayton, Jackson, and McGhie were then brutally beaten and lynched from the lamppost.

Out-of-state and local newspapers condemned the actions of the mob. The Chicago Evening Post wrote: “This is a crime of a Northern state, as black and ugly as any that has brought the South in disrepute. The Duluth authorities stand condemned in the eyes of the nation.”^[11] The Duluth Rip-saw specifically called out the inactivity of the police and demanded their resignation.^[12]Duluth’s Black community also spoke out. Dr. Milton W. Judy, a local dentist, called the lynching “a horrible disgrace” and “a blot” on Duluth’s history.^[13]

Unfortunately , there was also public support for the lynchings. Local newspapers like The Ely Miner and The Mankato Daily Free Press published articles supporting the mob’s actions. Editorials and opinion pieces in The Ely Miner praised the lynchings and hoped that this event would keep Black people from working with circuses in Duluth.^[14] The Mankato Daily Free Press referred to the victims as dogs and beasts, stating: “Mad dogs are shot dead without ceremony. Beasts in human shape are entitled to but scant consideration. The law gives them by far too much of an advantage.”^[15] The Chief of Police for neighboring Superior, WI used this event as justification for running the black community out of Superior.^[16] All of these sources show the violently racist undercurrents that impacted the lynching of Isaac McGhie, Elmer Jackson, and Elias Clayton.

2. The Aftermath

Following the lynchings, Duluth’s Black population dropped 16% as many Black Duluthians fled in fear for their safety. Motivated by the horrific events, numerous Black activists fought for both legal and legislative changes in a variety of ways. The most notable achievement was the enactment of H.F. No. 785, also known as the Anti-Lynching Bill. Signed into law on April 21, 1921, the bill enacted multiple revolutionary ideas. H.F. No. 785 allowed the removal of police officers who failed to protect persons in their custody from lynch mobs. The bill also required that police officers use their upmost power to protect prisoners from lynch mobs or else be faced with malfeasance claims. This portion of the bill was in direct response to eyewitness reports which stated the police willingly handed over the three men to the mob. H.F. No. 785 also provided that lynchers would be required to pay damages of up to $7,500 [around $108,000 today] to the dependents of the victim. After the passing of the Anti-Lynching Bill, no more lynching events were reported. Eventually, the act was repealed in 1984 based on the idea that racially motivated attacks could be federally prosecuted under the 1968 Civil Rights Act.

Nellie Francis, a prominent Black activist and suffragist from St. Paul, spearheaded the campaign for H.F. No. 785. Even as a student at St. Paul High School, Mrs. Francis was a fervent believer in racial equality. In an oration given during her graduation commencement, Nellie Francis called for the end of racial discrimination and hoped that “all, black and white, American and foreign-born, [can] shout with one glad shout that shall sound and resound from pole to pole, and from sunrise to sunset, this is the land of the free.” Called the mother of the act, she tirelessly drafted, initiated, and lobbied for the passage of a comprehensive Anti-Lynching bill following the Duluth lynchings and is thought to be the first Black women to lobby in front of the Minnesota Senate. Nellie Francis even met with Andrew Carnegie to secure a gift of $1,100 [around $17,000 today] for the H.F. No. 785 campaign. At a public testimonial celebrating her achievements, Mrs. Francis, visibly moved, stated: “Your children will reap the harvest of our solidarity, – of our determination to stand together, to fight together, and, if needs be, to die together, for they are dying, every day, the men and women of our race, martyrs to lynch-law . . . .” For the rest of her life, Nellie Francis was a prolific activist, most notably establishing the Everywoman Suffrage Club, the first Black suffrage organization group in Minnesota.

Nellie Francis’ husband, William Francis, was also a prominent lawyer and activist. Francis was one of the few Black lawyers practicing law in St. Paul during the early 20^th Century. Throughout his legal career, he was regarded as a “busy lawyer who seems to have handled pretty much everything that came along…” and especially focused on civil rights. In 1919, he successfully challenged the St. Paul police for their commonplace practice of detaining Black women without cause. He also challenged businesses for their refusal to serve Black customers. Most relevantly, following the Duluth lynchings, Mr. Francis was associate counsel for Max Brown, one of the men arrested for the alleged rape of Irene Tusken. Although Max Brown would eventually be convicted and sentenced for the crime, Mr. Francis, along with Frederick Barnett Jr. (the step-son of Ida B. Wells), Charles W. Scrutchin, and R. C. McCullough, three other lawyers hired by the NAACP, fought for Mason’s freedom. In addition to his courtroom battles, William Francis also helped Nellie Francis with the Anti-Lynching bill, by lobbying, providing legal expertise on the final form of the bill, and contacting W.E.B. DuBois for NAACP support.^[17]

Following the lynchings, many other people also fought for the rights of the Black community. For example, J. Louis Ervin, a prominent Black lawyer, went by himself to Duluth immediately after the lynchings to write a fact-finding report that corroborated the six men’s innocence. Dr. Milton W. Judy, relentlessly pushed for a law that banned the selling of postcards depicting the Duluth lynchings. Unfortunately, few records remain of their heroic deeds, except for the occasional archived newspaper article.

The tragedy of the lynchings is a permanent stain on the state of Minnesota. However, we should also remember the actions of those left behind. People like Nellie Francis, William Francis, Frederick Barnett Jr., Charles W. Schrutchin, R. C. McCullough, J. Louis Ervin, and Dr. Milton W. Judy spent years fighting for the rights of Minnesota’s Black community and their efforts should not be overlooked.

————————-

For further information on the life and efforts of Nellie Francis, the author recommends Professor William D. Green’s book, Nellie Francis: Fighting for Racial Justice and Women’s Equality in Minnesota.

For further information on the Duluth lynchings, Minnesota’s history of lynchings, and interaction of lynching and the law, the author recommends: John D. Bessler, Legacy of Violence: Lynch Mobs and Executions in Minnesota (2003); Christopher Waldrep, The Many Faces of Judge Lynch: Extralegal Violence and Punishment in America (1st ed., 2020); Frank Shay, Judge Lynch, His First Hundred Years (Washburn, Inc., 1938); and the Minnesota Historical Society.

_______________________________

[1] J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Managing and Resource Editor.

[2] See generally, John D. Bessler, Legacy of Violence: Lynch Mobs and Executions in Minnesota (2003).

[3] Id.

[4] U.S. Bureau of the Census, Twelfth Census of the United States, Taken in the Year 1900: Population 457 (vol. I 1901); U.S. Bureau of the Census, Fourteenth Census of the United States Taken in the Year 1920: Composition and Characteristics of the Population by States 508 (vol. III 1922).

[5] U.S. Bureau of the Census, Fourteenth Census of the United States Taken in the Year 1920: Composition and Characteristics of the Population by States 497, 508 (vol. III 1922).

[6] Duluth Lynchings: Online Resource, Minn. Hist. Soc’y (February 21, 2006), https://www.mnhs.org/duluthlynchings/.

[7] Bessler, supra note 1, at 190.

[8] Id. at 185.

[9] Lynching, Minnesota National Public Radio, http://news.minnesota.publicradio.org/projects/2001/06/lynching/page1.shtml.

[10] Bessler, supra note 1; The Duluth Herald, June 16, 1920, at 1, 14, Minn. Hist. Soc’y, http://media.mnhs.org/things/duluthlynchings/00001847.pdf.

[11] Minnesota’s Disgrace, The Appeal, June 19, 1920, at 2, (quoting Chi. Evening Post) Minn. Hist. Soc’y, http://media.mnhs.org/things/duluthlynchings/00001834.pdf.

[12] Editorial, The City’s Shame, The Duluth Rip-saw, June 26, 1920, at 2, Minn. Hist. Soc’y, https://www.mnhs.org/duluthlynchings/documents/The_Citys_Shame-82.001.php?return=collection%5B%5D%3Dmn_mhs-dlthly%26q%3Dthe%2520city%2527s%2520shame .

[13] Duluth’s Sad Experiment, Nat’l Advocate, July 3, 1920, at 1, Minn. Hist. Soc’y, http://media.mnhs.org/things/duluthlynchings/00001829.pdf. .

[14] Editorial, The Ely Miner, June 18, 1920, at 4, Minn. Hist. Soc’y, http://media.mnhs.org/things/duluthlynchings/00001827.pdf.

[15] “The Duluth Tragedy, The Mankato Daily Free Press, June 17, 1920, at 6, Minn. Hist. Soc’y, http://media.mnhs.org/things/duluthlynchings/00001831.pdf.

[16] Superior Police to Deport Idle Negroes at Once, Duluth News Tribune, June 17, 1920, at 1, Minn. Hist. Soc’y, https://www.mnhs.org/duluthlynchings/documents/Superior_Police_to_Deport_Idle_Negroes_at_Once-119.001.php

[17] Bessler, supra note 1, at 216–17.

Protecting Civil Liberties: Easier Said Than Done

By jlieditors

by Julia Decker*

It is easy to say that voting is the cornerstone of our democracy, perhaps easier still to say that protecting the right to vote is paramount. There is nuance, however, in assessing those protections. In an era of what many perceive to be increasing political polarization, ostensibly neutral yet increasingly stringent proposals in the name of “protection” may run up against civil liberties concerns.

The ACLU has consistently taken positions to support proposals such as restoring voting rights for formerly incarcerated folks, and opposing proposals such as voter identification laws. The goal of expanding the franchise regardless of race, gender, sexual orientation, or any other identity or characteristic aligns with the fundamentality of the right to vote.

On the other hand, proposals aimed at protecting election workers from intimidation, for instance, require more careful consideration. Ensuring the safety of election workers and administrators is unquestionably important, and a legitimate goal for decisionmakers to try and achieve. But laws attempting to penalize speech under the guise of “protection” will, as a general rule, face two main issues from a civil liberties perspective.

First, the tension between the First Amendment and other public policy goals, ranging from safety to functionality and beyond, is evident. From a public policy standpoint, it’s legitimate for election workers to not want to be insulted, harassed, or threatened for doing the job of ensuring the cornerstone of our democracy happens. However, the prospect of state-imposed civil or even criminal penalties for a person’s First Amendment speech or actions, as abhorrent as they may be, cannot be blindly accepted as a civil-liberties-friendly solution, even if enacted in the name of protecting the right to vote. Moreover, there is no guarantee that laws which empower the state to punish one group for First-Amendment-protected activities will not be turned around to punish another group. To put a fine point on it, a law that gets passed as a result of purported white supremacists harassing election workers in a predominantly BIPOC precinct could be relied on to target BIPOC counter-protesters in addition to, or instead of, the alleged white supremacists.

Second, when the discussion becomes one around “protection,” there is often a tendency to emphasize how election workers themselves feel afraid, due to the actions or speech of others. Subjective fear is legitimate, and election workers should not have to accept feeling afraid as part of their job. However, subjective fear should not be the basis for any legislation, especially legislation that imposes criminal penalties on a person. Cases of police violence have repeatedly shown the dangers of relying on subjective fear—how often have news reports carried some version of a police officer stating that they were afraid for their life as a justification for harming or killing a person? And how often is that apparently enough for the legal system to decide that the officer’s actions were reasonable?

In addition, even purportedly objective measures that rely on something like a “reasonable person” standard fail to account for implicit bias. Much has been written about the way people are perceived differently based on race, gender, and other factors, but the “reasonable person” standard simply bakes those perceptions into the standard itself. The result is that laws proposed in the name of protecting a particular right, like voting, may perpetuate standards that have disproportionately harmed BIPOC communities in particular. Experiments have shown that people perceive Black men as being “more capable of causing harm” and therefore police would be “more justified in using force to subdue them.” Thus, the threshold for what a “reasonable person” would consider a threat is different based, at least in part, on the race, gender, and/or age of the person they are interacting with. Some mushiness with respect to potential harm is understandable. However, one shouldn’t lose sight of the fact that, for BIPOC folks, this baked-in disparity can mean the difference between a heated conversation and being shot by armed agents of the state.

None of this is to say that protecting the right to vote and protecting civil liberties are incompatible; far from it. However, a principled approach to protecting civil liberties requires an understanding that rights and liberties can be, and often are, in tension with one another, and resolving that tension is much, much easier said than done.

*Julia Decker, Policy Director, ACLU of Minnesota

Racism, Social Control, and the Regulation of Bar Admissions

By jlieditors

By Professor David Schultz*

Justice Oliver Wendell Holmes, Jr. famously declared: “The life of the law has not been logic: it has been experience.” When it comes to admission to practice law, one could say that “The life of admission to practice law has not been fairness but exclusion.”

From its birth, America was a racist nation, born of conquest and slavery. The Constitution permitted slavery. Law was a tool to maintain this order, and lawyers were often the agents used to enforce it. The bar exam and the admissions process to practice law sit at the apex of a legal establishment that perpetuates societal racism while hiding behind a veneer of equality and neutrality. These are the last but certainly not the only obstacles that impede the diversification of the legal profession and which in turn impacts the delivery of justice in America. Controlling who can practice law is a tool of controlling social change and maintaining the status quo.

The United States inherited much of its law from England. It also inherited a legal profession and culture that was elitist. In eighteenth century England, only the affluent and learned few could afford the study to enter the practice of law. It was a bar not meant to challenge the power of the Crown and privilege, but rather a product of it. This legal aristocracy came to colonial America and lived on into the nineteenth century. Alexis DeTocqueville viewed American attorneys as aristocrats, one of the checks upon the people and majorities.

The story of bar admissions in the US is rooted in the professionalization of the practice of law that occurred in the late nineteenth century. At one time there were no formal qualifications to practice law. The only tool to keep the legal profession exclusive was class. Only a few could afford the college education and time to read the law. But as the spirit of democratization pervaded America in the nineteenth century, and especially after the Civil War, new pressures emerged that produced the rise of the modern legal profession. Simply put, the desire for attorneys to secure their status and maximize income drove them to take steps to professionalize. With professionalization, came exclusion.

The doctrine of “separate but equal” ensured that African-Americans could not secure access to good law schools. It was often difficult for African-Americans to become lawyers, thereby making it harder for people of color to secure representation. Character and fitness tests too often served to discriminate against people of color. In cases such as Bradwell v. Illinois, the Supreme Court ruled that a state could prevent women from practicing law, declaring that pursuing such an occupation is not one of the privileges or immunities protected by the Fourteenth Amendment and that attorneys “are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. . . . The order of admission is the judgment of the court, that the parties possess the requisite qualifications as attorneys and counsellors, and are entitled to appear as such and conduct causes therein.” Being a woman was a negative character trait and a qualification that could keep Myra Bradwell from practicing law.

Overt discrimination was accompanied by facially neutral techniques to cleanse the bar. The American Bar Association was formed in 1878 to advance the science of jurisprudence and maintain the profession of the law. Additionally, Dean Christopher Langdell’s invention of the modern law school in 1870 at Harvard and the rise of the use of case law and Socratic method to teach ostensibly were meant to make a science out of law and create professional and competent lawyers. Yet this professionalization also secured other goals.

Law school education, especially as it evolved to require a college education in the 1920s, was theoretically meant to produce good attorneys, well-educated and grounded. Protecting clients and the public was also offered as a justification. Early in the twentieth century, the ABA’s quest for status led to the licensure of attorneys to practice law. On one level this licensure ensured competence and professionalism, but it became yet another tool to limit who could practice.

College education, formal law schooling, and licensure became facially neutral barriers or impediments to practice law by adding additional educational costs to becoming a lawyer. Moreover, requiring additional education also meant that individuals who practiced law were paying additional expenses for training and delaying making money. Thus, these formal requirements de facto excluded some from practicing while also ensuring that those who invested in their legal education received a return on their investment and status.

In the early twentieth century, as wealth and power consolidated in business corporations, the bar association sought to control and resist challenges to it. In 1900 the American Association of Law Schools (AALS) was formed. It sought to regulate the curriculum and standards for law schools. It , along with the ABA , sought to restrict the practice of law. White Anglo-Saxon attorneys sought to challenge social change by impeding who could practice law. After World War I and the Russian Revolution of 1917, fears of immigration led to efforts to restrict the ability of new Americans to attend night or part time law schools. Good character meant being white, male, and a patriotic American.

A 1920 ABA committee headed by Elihu Root was empowered to find ways to “Strengthen the character . . . of persons to be admitted to the practice of law.” Among its recommendations was a set of prerequisites to law school education. The two-tiered system of undergraduate and then law school education was a means to restrict working class and immigrants from practicing law. Mandatory bar membership also emerged in the 1920s, and coupled with higher educational and admissions standards, achieved the objective of keeping many out. Finally, as another technique to root out law schools that served the working class and immigrants, the AALS and the ABA teamed up to create the modern bar exam.

The emergence of the 1908 Canons of Professional Ethics, as well as the subsequent 1964 Model Code of Professional Responsibility and 1983 Model Rules of Professional Conduct were additional ways to restrict the practice of law. While on the surface they aimed to protect the public and ensure competent and ethical practice, they also served to limit who could practice.

Finally, in many cases, individuals from specific groups such as Jews, immigrants, and people of color were simply excluded, either by the character and fitness tests, by the two-tiered education system, or by the licensure requirements. But when all else failed, accrediting law schools and forcing would-be attorneys to graduate from law school and then pass a bar exam afterwards was enough to secure the objective of restricting the bar. Overall, even to this day the bar exam discriminates against specific groups, becoming the last step in the process or pipeline that denies people of color access to the practice of law.

Cleansing the bar was of course about discrimination and it was a way to maintain status and profitability for the Anglo-Saxon elites. But it served another purpose—social control. Prevent women, working class, and ethnic populations or people of color from practicing law and you also prevent these same individuals in the general population from receiving legal services. Denying access to lawyers denies access to justice, rendering it difficult to challenge the status quo and racism in society.

It may be no coincidence that the disparities, racial and otherwise, that one sees in society are a product of restricted access to the practice of law. Seemingly taking a cue from Dick the Butcher in Shakespeare’s Henry VI when he famously declared: “The first thing we do, let’s kill all the lawyers,” the first thing the bar did to preserve their ideal society was to restrict who could even become a lawyer in the first place.

*David Schultz, Professor, University of Minnesota Law School; Distinguished University Professor of Political Science and Legal Studies, Hamline University

Discriminating Against Survivors of Domestic Violence as Sex-Based Discrimination Under Title VII

By jlieditors

By Kendra Saathoff*

Discriminating against a woman for being a victim of domestic violence is sex discrimination under Title VII of the Civil Rights Act. Domestic violence is a workplace issue, whether from an abuser threatening an office and the workers in it or because a survivor needs to miss work to ensure she obtains an Order for Protection. Though Title VII of the Civil Rights Act of 1964 does not explicitly prohibit discrimination against applicants or employees who experience domestic violence, it does explicitly prohibit discrimination based on sex. Therefore, survivors can arguably still gain protection against discrimination under Title VII by arguing that discrimination against them because of their status as a victim of domestic violence is sex discrimination.

I. Domestic Violence is a Workplace Issue

Domestic violence is insidious. One in four women and nearly one in ten men have experienced physical violence, sexual violence, and/or stalking during their lifetime, and over 43 million women and 38 million men have experienced psychological aggression by an intimate partner in their lifetime. Leaving an abusive relationship is the most dangerous time for survivors. Domestic violence is a workplace issue because this danger can extend to the victim’s workplace—such as when an abuser comes to the victim’s workplace and puts others in danger. There are other workplace impacts on survivors of domestic violence, including missed work to go to court and obtain an order for protection, interference by the abuser with work, and harassment at the workplace. 19 percent of organizations in a Society for Human Resource Management survey had a domestic violence incident in the past year. Another survey estimates that survivors of domestic violence who are bothered in some way by their abusers at work (e.g. through harassing phone calls) range from 36 to 74 percent, and that domestic violence can also impact a survivor’s ability to get to work (e.g. through physical restraint), and can even lead to job loss for 5 to 27 percent of survivors. Despite the pervasiveness of domestic violence impacts on the workplace, victims of domestic violence can still be legally fired from their jobs for being victims in most of the U.S.

II. How the Law Can Help

The law can help by ensuring survivors keep their jobs and preventing them from being negatively impacted at work. Because domestic violence mainly affects women, and is associated with survivors losing their jobs, there is an argument that employers firing employees for being victims of domestic violence is sex-based discrimination under Title VII of the Civil Rights Act.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, sex, religion, or national origin. It does not explicitly prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking, therefore potential employment discrimination and retaliation against these individuals may be overlooked.

How could Title VII’s prohibition of sex discrimination include prohibition of discrimination against someone because they are a victim of domestic violence? There could be two avenues. The first argument is that victims are disproportionately women and therefore discriminating against victims of domestic violence is discriminating against women and therefore sex discrimination. A victim would have to statistically demonstrate that a facially neutral practice of terminating any employee in a domestic violence incident impacts more women than men. Similarly, even if there is not a workplace incident of DV, if an employer were to fire anyone with a protection order, a plaintiff would need statistical evidence to support a claim that a policy requiring the termination of all employees who hold orders of protection disproportionately affects women. Though the cited article takes for granted that discrimination of domestic violence is sex discrimination, stating that “[g]iven the existing gender asymmetry of domestic violence, plaintiffs should be able to easily demonstrate that any practice predicated on an employee’s condition as a victim of domestic abuse will disproportionately affect women,” courts have struggled to recognize that as fact—see the discussion of Taylor v. Children’s Vill. and Johnson v. All Metro Home Care Servs. below.

The second possible argument for why employment discrimination against survivors of domestic violence is sex discrimination under Title VII is that it is sex-stereotyping. Title VII of the Civil Rights Act “prohibits an employer from treating you differently, or less favorably, because of your sex, which is defined to include pregnancy, sexual orientation, and gender identity. This law also prohibits employment decisions based on stereotypes (unfair or untrue beliefs) about abilities and traits associated with gender.” There could be an argument that firing someone for being a victim of domestic violence relies on sex stereotypes, for example instead of firing a survivor because their abuser has threatened the workplace, an employer fires a survivor for fear of the “drama” women who’ve experienced DV can bring to the workplace. Arguing that employment discrimination against survivors of domestic violence is sex discrimination because of sex-based stereotypes would also include discriminating against male survivors of domestic violence, for example a hiring manager could believe that men cannot be victims of domestic violence because they should be able to protect themselves, and therefore does not select a male applicant when the manager learns that the applicant obtained a protection order against a partner.

III. Counterarguments

Many courts have found that being a survivor of domestic violence is not a protected class under Title VII and therefore there is little recourse for survivors who lose their jobs because of the domestic violence they have faced. The court in Taylor v. Children’s Vill. (S.D.N.Y. Apr. 21, 2021) stated “. . .being a survivor of domestic violence or human trafficking is not a protected class under Title VII.” And in Johnson v. All Metro Home Care Servs. (N.D.N.Y. Nov. 7, 2019) the court stated that the plaintiff failed “to allege facts plausibly suggesting that, as a ‘survivor of domestic violence,’ she was a member of a protected class pursuant to Title VII.”

Further, not all domestic violence survivors are women. Can a practice that discriminates against both women and men, but more women, be deemed sex discrimination under Title VII? That will be a challenge for survivors who seek recourse under Title VII. It would also make it difficult for survivors who are men to seek recourse against discrimination under Title VII. And for survivors who are nonbinary or gender nonconforming, it could be challenging for them to find protection from discrimination based on their status as survivors under Title VII’s sex-based discrimination as well.

Finally, abusers often do pose a threat to workplaces of victims, and therefore employers have a right to do what they can to protect their employees. Is it discrimination if employers are acting in the interest of safety of themselves and the organization?

IV. Conclusion

There are many obstacles survivors face in seeking legal protection from discrimination under Title VII of the Civil Rights Act. This is an area without much legal precedent but could be an avenue through which survivors seek recourse in the future against discrimination based on their status as a survivor of domestic violence.

*Kendra Saathoff, J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Note & Comment Editor

Posts by jlieditors

Volume 42, Issue 1 (2024)

How a New Ohio Law and Other State Reforms Are Changing the Landscape of Mental Health and Criminal Justice

A New Minneapolis: Opportunities in the Redistricting of Minneapolis Wards

We Finally (Kind of) Understand COVID – What Does That Mean at the Voting Booth?

Choice or Coercion? How the Push to Avoid Formal Foster Care Has Contributed to the Creation of a Dangerous Hidden Foster Care System

Will the Indian Child Welfare Act Survive? The Supreme Court Will Decide in Haaland v. Brackeen

The Clash Between LGBTQ Anti-Discrimination Law and Freedom of Speech in 303 Creative v. Elenis: Which Will Take the Cake?

Noncompete Clauses and the Federal Trade Commission’s Proposal to Ban: Pros, Cons, and Questions on the FTC’s Authority

Laufer Gives ADA Testers a Second Green Light

The Forgotten Child Bride in the United States

What’s Brewing with Bruen?

Emergency Intellectual Property Reform: COVID-19 and Vaccines

Abortion Asylees: Is There Still a Path Forward After Dobbs?

How Current Law Fails to Protect Defendants with Mental Illnesses from the Death Penalty

The Constitutionality of SB 1142

The Dangers of SB 1142

Content-Based Restriction

SB 1142 prohibits protected speech.

SB 1142 is not narrowly tailored to serve a compelling state interest.

Minnesota Crisis Pregnancy Centers and The Positive Pregnancies Bill

Biden’s Private Prison Ban Must Include ICE Detention

Injured on the Job: Minnesota Case Presents Opportunity to Address Employment Rights of Medical Cannabis Users

A Healthy Start: Minnesota Is Pioneering an Alternative to Prison Nurseries, and Other States Should Follow Its Lead

Insurer Liability for Discriminatory Policies: Can Insurers as Agents of the Employer Be Liable Under Title VII?

A Constitutional Necessity, Not a Luxury: States Must Provide Public Defender Offices With More Resources to Provide Indigent Defendants With Effective Counsel

Ignoring Inequalities and Refusing to Consider Consequences: The Supreme Court’s Blocking of OSHA’s Emergency COVID Standard

“The Harvest of Solidarity”: Achievements of Black Activists Following the 1921 Duluth Lynchings

Protecting Civil Liberties: Easier Said Than Done

Racism, Social Control, and the Regulation of Bar Admissions

Discriminating Against Survivors of Domestic Violence as Sex-Based Discrimination Under Title VII