Supreme Court Allows Texas Abortion Law To Take Effect (For Now)

By John Noland

As it is a hallmark of the American legal system, justice is conferred based on the outcome of a war of words.  There have been two hundred plus years of debate over a document of initially 4,543 words.  This grayscale of ambiguity in syntax and intention is what drives the discussion and decision of law in America.  In accordance with such vaunted tradition, the United States Supreme Court decided not to block a recent Texas abortion law.

            In July 2013, after a great deal of argument, protesting, and Texas state senator Wendy Davis’s cinematic and impassioned filibuster, the Texas Senate approved a piece of legislation containing a bundle of measures aimed at restricting state abortions.  Under the law, pregnancies can no longer be terminated after twenty weeks, after a study controversially declared that fetuses are pain-sensitive at that time.  More significantly, the legislation requires “doctors performing an abortion to have admitting privileges at a hospital within 30 miles of the abortion clinic” (MacLaggan).  Supporters argue that this would lead to safer, less painful procedures, while opponents saw this as a means of limiting abortions by shuttering clinics around the state, and one that would specifically hurt rural women.

            Indeed, District Court Judge Lee Yeakel agreed, throwing out the section of the law mandating admitting privileges, terming it a “substantial obstacle” for women seeking to utilize their constitutional right to end a pregnancy.  Well-publicized, political issues such as this rarely are decided at such a comparatively low judicial level, and Judge Yeakel acknowledged that such a law was “going to be decided definitively not by this court, but by either the Circuit or the Supreme Court of the United States” (Eckholm).  The ruling was quickly contested, and an appellate panel declared, in opposition to Yeakel’s decision, that the Texas law was legal, arguing the new parameters were allowable, as the Supreme Court has permitted restrictions so long as they do not amount to an “undue burden” for a woman seeking an abortion.

            Once again, the varying interpretations of the legal language provided the judiciary food for thought, and the Supreme Court took up a study of the issue.  After a week of consideration, Justice Scalia led a narrow majority to declare that the law would not be blocked immediately.  He wrote in his opinion that “there is no doubt that the applicants have not carried their heavy burden of showing that [not blocking the law] was a clear violation of accepted legal standards,” and that the clinics would have to abide by the Circuit’s decision, as the appellate board had not “clearly and demonstrably erred” (Planned Parenthood of Greater Tex. Surgical Health Services v Abbott 4, 1).  In his dissent, Justice Breyer chose to analyze the practical context of the law, submitting that women left unable to receive the procedure would be forced to travel in “some cases 100 miles or more…to obtain a safe abortion, or else not to obtain one at all” (Ibid 7).  By this logic, the law could possibly be considered to establish an “undue burden” on the women seeking to terminate a pregnancy.  Conversely, Alito’s argument was more philosophical and historically guided, in saying that “it would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional” (Ibid 3).  Justices Ginsburg, Kagan, and Sotomayor joined Justice Breyer in dissent, and Alito and Thomas backed Scalia’s opinion, leaving Roberts and Kennedy to have “presumably voted with those three, because it would have taken five votes to act definitively on the plea” (Denniston).  The Court’s refusal to vacate the stay is not the end of the trajectory for this “difficult, sensitive, and controversial legal matter,” in the words of Justice Breyer.

            Essentially, the petition for the Supreme Court to vacate the stay was a last-minute attempt to keep the law from taking effect.  In refusing to block the legislation, the Court handed the case back to the Circuit Court, which will examine the law’s constitutionality in a more in-depth manner.  If the contentious history of abortion decisions can be any guide, the issue will later “return to the Supreme Court for an ultimate test of its validity” (Denniston).  This quick study of the law was a rare case, meant to be a test of an important piece of legislation before it could become law.  However, the American legal process is remarkably thorough, patient, and methodical, and this will not be the final word on this issue.  The consideration of this law will be a drawn-out affair, and will likely serve as an important precedent for the constitutionality of abortion restrictions.

 

Bibliography

Denniston, Lyle. "Texas Abortion Law Left in Effect." SCOTUSblog. SCOTUSblog.com, 19 Nov. 2013. Web. 19 Nov. 2013.

Eckholm, Erik. "Judge in Texas Partly Rejects Abortion Law." The New York Times. The New York Times Company, 28 Oct. 2013. Web. 19 Nov. 2013.

MacLaggan, Corrie. "Texas Passes Abortion Restriction Bill, Governor Certain to Sign." Reuters. Thomson Reuters, 13 July 2013. Web. 19 Nov. 2013.

Planned Parenthood of Greater Tex. Surgical Health Services v. Abbott, 571 U.S. (2013), http://sblog.s3.amazonaws.com/wp-content/uploads/2013/11/Texas-opinions-11-19-13.pdf

America’s Affirmative Action

By Elorm Sallah

            Affirmative action has been one of the most controversial programs in the United States since John F. Kennedy on March 6, 1961, Executive Order 10925, which stated that government contractors “ take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”[1]  After 1961, with the passage of the Civil Rights Act of 1964, which even furthered affirmative action, there have been numerous lawsuits that have attempted to contract this policy.[2]

            In the most recent affirmative action case that reached the Supreme Court of the United States, Fisher v. University of Texas, which was a case concerning the affirmative action admission policy within the University of Texas.  The Court ruled that the school “may use affirmative action only when there is no other workable solution to bring about diversity, and only until minorities reach a critical mass on campus.”  However the Court ruled that the 5^th Circuit Court of the United States should rehear the case as they stated, “the appeals court didn’t properly follow case law.”[3] 

            No one with the plaintiff Fisher’s GPA was admitted into the University of Texas in 2008, however her attorneys argue that “enough minorities attend the university that race should no longer be a factor.”³   Ultimately, the University of Texas argues that with 48,000 undergraduate students, they have “made progress in minority enrolment only because of race-based criteria and that minorities are not yet sufficiently represented in all colleges.” ³

            One of the most notable affirmative action cases, as it was the first case of that nature that the Supreme Court had dealt with was Regents of the University of California v. Bakke.  Allan Bakke, a thirty-five year old white man had twice applied for the University of California Medical School at Davis, however he was rejected twice.  The medical school reserved “sixteen places in each entering medical class of one hundred for “qualified: minorities.”  This was a part of the university’s affirmative action program.[4] 

Bakke’s qualifications – GPA and test scores exceeded those of any of the minority students admitted in the two years Bakke’s applications were rejected, and he eventually sued the school basing his suit on he was “excluded from admission solely on the basis of race.”  Ultimately the Court ruled, “Any racial quota system supported by government violated the Civil rights act of 1964.  The Court however followed that “the use of race as a criterion in admissions decisions in higher education was constitutionally permissible.”  This case determined that race is permissible as one of several admission criteria.⁴

Affirmative action was initially put in place to protect minorities from unfair practices of discrimination in employment, government contracts, and university admissions however today many question it’s fairness as there has been an increase in diversity of almost all fields of the workforce and universities.  The debate will continue until a general consensus of people can determine that there are a fair amount of groups of all people in every sector.

---

[1] “Executive order 10925.” Equal Employment Opportunity Commission. Accessed November 19, 2013, http://www.eeoc.gov/eeoc/history/35th/thelaw/eo-10925.html.

[2] “Affirmative Action.” Plato.stanford.edu, last modified September 17, 2013, http://plato.stanford.edu/entries/affirmative-action/. 

[3] “Court asks University of Texas lawyers how they’d decide affirmative action isn’t necessary,” Washington Post, November 13, 2013, https://owl.english.purdue.edu/owl/resource/717/05/

[4] “Regents of the University of California v. Bakke, ” Oyez, Accessed November 19, 2013, http://www.oyez.org/cases/1970-1979/1977/1977_76_811.

Legalization of Marijuana Efforts and Consequent Employment Challenges

By Brian Liu

For proponents of legalized recreational marijuana, it seems the fight is almost won. Though most of the momentum has swung towards legalizing the medical use of marijuana, the movement for recreational use has also benefitted from the generally uncontested legislation that has been raised in several states. Twenty states and the District of Columbia now allow the medical use of marijuana; meanwhile, Colorado and Washington permit the sale and use of recreational marijuana. Several state Supreme Courts, including the Michigan and Florida courts, have put measures to legalize the drug under consideration. Yet the future looks hazy for those who choose to smoke and are looking for employment. Despite major advances in the legalization and proliferation of legal pot shops, employment law on the federal and state levels have yet to catch up to the speed of advances made thus far, presenting consistent challenges to employees on all levels in both the public and private sectors.

            The Federal government retains of course the most stringent requirements when it comes to regulating marijuana use. Federal employees face regular drug testing and often zero-tolerance policies regarding marijuana. As it stands now, the level of enforcement within the federal government itself remains left up to the individual departments themselves; thus, some are more proactive with drug testing measures (State, FBI, CIA) than others. Given the continued classification of marijuana as a Schedule I Controlled Substance, and continued complacency and un-coordinated message coming from the Administration, it seems that any change for legalization proponents will have to look at the state level.

            Slightly more intriguing are those cases which occur in places of employment outside of the government. Under the Drug Free Workplace Act of 1988, which is applicable to certain private companies receiving federal funding or grants (those receiving upwards of $100,000 in grants for example), employers are mandated to enact a drug-free workplace policy, supporting the measure with discretionary punishment or rehabilitation systems. Nowhere in the act itself does proactive enforcement factor in—i.e., drug testing—yet companies have taken the fear of losing federal contracts as a pretext for employee drug screenings and stricter drug enforcement policy. This has presented even greater challenges for employment, as employers intend to “make a show” for strict drug policy to continue receiving federal grants.

(Banks, as an interesting aside to note, as federally regulated institutions, are explicitly prohibited to conduct transactions with medical marijuana businesses, and thus medical marijuana business owners must maintain large sums of cash on hand, raising issues for tax collection first and foremost, as well as the risk for money laundering or other illicit activity.)

            Outside of such federally regulated/federal grantee companies, other employers in states such as Colorado and Washington still maintain the discretion to fire employees they deem to be “incapacitated” by the influenced of marijuana, regardless of whether or not they were under the influence at the place of work. This is the crucial area where reform, should legalization of marijuana move forward, needs to be made. These reforms mean little if marijuana users—and particularly, medical marijuana users—are still subject to uncertain and conflicting drug policies that do little to secure their right to hold a job. Such policies are damaging towards both the spirit of these reforms, and of the marijuana users themselves, as willful firing of these medically dependent workers continues to propagates the idea that marijuana users are complacent, unemployable, and unable to moderate their own usage.

            Oregon, currently looking towards a sure-success ballot measure to legalize recreational marijuana, is already investigating how to resolve this issue. Some have advocated treating marijuana as employers already do alcohol—i.e., to prohibit impairment at the workplace, but not necessarily prohibit impairment at all. Others are looking into deciding which groups—particularly those dealing with public safety—will be prohibited from marijuana use, including police officers and firefighters. Two states have managed some level of employee protection under their Medical Marijuana Acts. Delaware and Arizona afford protections against hiring and firing discrimination on the basis of “cardholder status” or as a result of a positive drug test for marijuana. Unfortunately issues still abound, including lack of precedent, and the general sentiment has been uncertainty. On the other hand, the latest legislation to come forward, the “Jacki Rickert Medical Cannabis Act” out of Wisconsin, includes compliance measures to all eight guidelines from the DOJ (the 2013 “Cole Memo”), yet still offers little in the way of employment protections.  Maine and Rhode Island offer only minimal protection as well, whereas every other state outside of those mentioned offer no protection at all. The contrasting levels of success between these pieces of state legislation have room to divide even those who support a blanket measure for legalization.

            This legal snafu raises several points to be addressed. The outstanding issue that must be addressed in the coming months regarding employment policy is not the disparity between state and federal law, as is commonly argued, but between state and state law. That is, states must make an effort to reconcile their own conflicting laws, between usage and workplace employment, to set an appropriate standard for hiring and firing justification. Determinations of whom to discriminate from these laws—would, for example, police officers be allowed to use marijuana, or would caretakers or would construction site workers—as well as determining other factors such as when are where usage is appropriate will be the first step to resolving the employment debate. Employers must take the charge in this, as they are given the authority in the DFWA to regulate their own drug-policy measures within the workplace. If employers set the standards in a clear and cogent way that expresses the possible rationale for corrective action and termination, then that would be a fair step towards effective marijuana policy between both the employer and the employee. In turn, this will provide the empirical basis for further legislative revisions in the coming years, as the exacerbating issue here has been and continues to be a lack of precedence and workable evidence.

            With these predicaments medical and recreational marijuana proponents find themselves in, it seems legalized marijuana seems much farther off than is popularly imagined. Of course, as with any reform, what is important is that throughout this experimentation in social policy—whether legalizing marijuana will be to the detriment or benefit of society—the enforcement agents involved in these cases (state attorney generals, prosecutors, and even human resource managers) cast a discerning eye on which policies for prosecution are worth pursuing over others. Enforcement is as much a part of reform as reformers themselves, as it is with them the ultimate determination of what the law will pursue.

Works Cited

http://en.wikipedia.org/wiki/Cannabis_in_the_United_States

http://about.bloomberglaw.com/practitioner-contributions/employment-protections-under-medical-marijuana-laws-the-changing-landscape-contributed-by-jennifer-gimler-brady-and-michael-b-rush-potter-anderson-corroon-llp/

http://www.scotusblog.com/case-files/cases/moncrieffe-v-holder/

http://cbaclelegalconnection.com/2012/12/spark-the-discussion-top-five-myths-about-the-drug-free-workplace-act/

http://www.safeaccessnow.org/wisconsin_2013

http://www.safeaccessnow.org/ca_employment

Crime And Punishment Lawyer Brief

By Victoria Vail

Opening Statement:

            The defense pleads that Raskolnikov is not guilty of committing murder on account of insanity.  Raskolnikov did not commit the murder for the sake of killing someone for his own pleasure.  Raskolnikov exhibits signs of OCD, major depressive disorder, and schizophrenia.  He experiences convulsions, hallucinations, loss of appetite, abnormal thinking, and social withdrawal.  Dounia, Nastasya, Pulcheria, Nikolay, and Porfiry can attest to these symptoms.  Quinci Peri has examined Raskolnikov’s physiatric state of mind before, during, and after the murder.  She has proof that Raskolnikov is indeed insane and should not be sentenced to jail time.  Those who know Raskolnikov well agree that he needs mental help and that he truly is a good man.  They do not believe that he is dangerous and would murder again.  Porfiry, a detective himself, did not rush to put Raskolnikov in prison because he knows that Raskolnikov does not need prison, he needs help. 

            Raskolnikov’s environment and social standing contributed to his insanity.  He did not use the money he gained from the murder for his own benefit, and he hid it under a rock.  Raskolnikov did not commit the murder as a sane man.  Raskolnikov believed in the superiority complex.  He believed that one can murder someone else if he is intellectually superior.  However, that notion was completely rejected when he did not use the money for which he committed the murder.  He realized that the old woman was superior to him because he was ultimately hurt by his murdering her; furthermore, he did not act according to plan.  Raskolnikov did not plan on killing the sister but he did because he was in shock that she was there.  Raskolnikov’s disorders skewed his perception of right and wrong: he believed what he was doing what right in his head.

Dounia:

Proof:  Dounia knows Raskolnikov very well since she is is sister.  She has insight on Raskolnikov’s behavior before the murder and after.  She can prove that Raskolnikov exhibited signs of mental illnesses.  He became extremely paranoid and disturbed after the murder.  She can also attest that he was very pressured to support his family.  He protected her from Luzhin and wanted the best for her.  Raskolnikov changed in Dounia’s eyes since arriving in St. Petersburg.  He experienced fainting spells and abnormal behavior.

Page 513: “Aren’t you half expiating your crime by facing the suffering?”

“Brother, brother, brother what are you saying? Why, you have shed blood!”

Relevance:  Dounia can prove that her brother needs mental help and that he did not commit the murder simply to kill.  He is not a dangerous man and should not be placed in jail.  Dounia can provide the jury with an insight to Raskolnikov’s past and environment.

Nikolay:

Proof:  Nikolay can prove that he did not commit the crime, and it was obviously Raskolnokiv.  Nikolay’s strange actions can prove that the thought of murder can drive someone insane.

Relevance:  Raskolnikov became extremely paranoid with getting caught by the police.  While Nikolay did not commit the crime, he still confessed just because he was assumed as the suspect.  Because he did not want to face society as a murderer, he confessed even though he did not commit the crime. 

Nastasya:

Proof: Nastasya took care of Raskolnikov and witnessed his changes throughout the course of his life.  She can describe him when he experienced hallucinations.  She can describe that Raskolnokiv is truly a good man and needs help.

Relevance: Nastasya can prove to the jury that Raskolnikov did indeed exhibit signs of insanity.  He was not eating properly and slept much more than normal.  He was clearly affected by the murder.

Pulcheria:

Proof: Pulcheria can describe her family’s situation and the pressure that Raskolnikov is put under to provide for the family.  She can explain the changes in his mood since arriving in St. Petersburg.  Most importantly, she can explain that her son is truly a good man. 

“Sometimes days and even weeks of gloomy silence and tears would be succeeded by a period of hysterical of her son, of her hopes for his future...” (page 531).

Relevance:  Pulcheria can prove that Raskolnikov was trying to help his family by murdering.  However, he did not do so when he hid the rubles.  This proves that Raskolnikov did not know right from wrong.  Murdering someone else for the sake of gaining money is wrong, however he thought it was right.  He then hid the money because he was so afraid of being caught by the police.  Raskolnikov clearly was not sane during the time of the murder.

Porfiry:

Proof: Porfiry has detailed accounts of Raskolnikov’s behavor right after the murder.  He knew that Raskolnikov was the murderer, but did not put him in jail right away.  This is proof that Raskolnikov was someone Porfiry sympathized with because he knew that he was not an outright murderer.  Raskolnikov truly believed what he was doing was right. 

Relevance:  Porfiry can attest that Raskolnikov is not a dangerous man.  He did not put Raskolnikov in jail right away because he did not have enough evidence.  He also tried to figure out Raskolnikov along the way and realized he was a good man.

Defense Psychiatrist:

Proof:  Raskolnikov exhibits many signs of OCD, major depressive disorder, and schizophrenia.   Quinci can describe his symptoms to the court including loss of appetite, abnormal thoughts, and obsessions.

Relevance:  This can wrap up the point that Raskolnikov was indeed at the time of the murder.  He did not know right from wrong during the time of the murder.

Prosecuting Psychiatrist: 

Proof: The prosecuting psychiatrist has worked with Raskolnikov as well.  She cannot deny his symptoms to OCD, major depressive disorder, and schizophrenia.  The prosecution will say that Raskolnikov was not insane during the crime, and that his current disorders manifested as products of his guilt that eating away at him.  However, Raskolnikov did not use the money he gained from the murder.  He still believed what he did was right for his family.

Relevance:  This can prove the defense’s point that Raskolnikov was indeed insane.  At the time of the murder, he was undoubtedly insane because of the way it turned out.  Raskolnikov did not plan to murder the sister, and he did not even use the money.

Works Cited

Dostoyevsky, Fyodor. Crime and Punishment. New York: W.W. Norton, 1964. Print.