Friday, April 15, 2016
From South Bend Tribune:
Hundreds of abortion rights supporters gathered Saturday at the Indiana Statehouse to protest an anti-abortion law signed by Gov. Mike Pence that is among the most restrictive in the U.S.
Some waved signs reading "Fire Mike Pence" while speakers took turns criticizing the law, which bans abortions sought because of fetal genetic abnormalities.
Rachael Himsel, of Bloomington, held a large banner that said "Stop This Pencestrual Cycle." She says the new law amounts to lawmakers intruding in a private decision that should be made between a woman and her doctor.
National backlash to the law has been building, and the American Civil Liberties Union and Planned Parenthood of Indiana and Kentucky have also sued the state, calling it unconstitutional.
The Republican governor says the law affirms the sanctity of life while still allowing abortions if a mother's life is at risk.
"I believe that a society can be judged by how it deals with its most vulnerable--the aged, the infirm, the disabled and the unborn," Pence said last month when he signed the measure.
Under its provisions, doctors could be sued for wrongful death or face professional reprimanded if they perform an abortion sought due to genetic abnormality or a fetus' race or sex. There is an exemption for fetuses not expected to live past three months if brought to term.
One provision in the law requiring that all aborted or miscarried fetuses be cremated or buried was particularly galling, said Himsel, who says she once miscarried.
Read more here.
Thursday, April 14, 2016
In a major document released Friday, Pope Francis addressed divisive elements of Catholic doctrine — including how to treat couples who remarry after a divorce that wasn't annulled by the church, and the church's stance on contraception.
Without issuing any new top-down doctrine, Francis said that priests should focus on providing pastoral care for Catholic couples, rather than sitting in judgment of them, and that individual conscience should be emphasized, rather than dogmatic rules.
The document — a post-synodal apostolic exhortation called "Amoris Laetitia," or "The Joy of Love" — is more than 250 pages long.
In it, the pope emphasizes that life is more complicated than religious law. In the opening pages, he invokes the values of "generosity, commitment, fidelity and patience," but also says he wishes to "encourage everyone to be a sign of mercy and closeness wherever family life remains imperfect or lacks peace and joy."
He explains that in Amoris Laetitia, in addition to considering scripture, he will "examine the actual situation of families, in order to keep firmly grounded in reality." And he notes that Jesus set forth a demanding ideal for his followers — but "never failed to show compassion and closeness to the frailty of individuals."
Joshua McElwee of the National Catholic Reporter told NPR's Morning Edition that the exhortation has a very different tone than previous church pronouncements on these subjects.
Read more here.
Wednesday, April 13, 2016
From BBC News:
India is perhaps the only country in the world where a Muslim man can divorce his wife in a matter of minutes by just uttering the word talaq (divorce) three times. But this controversial practice of "triple talaq" is now facing a stiff challenge - the Supreme Court is considering whether to declare it unconstitutional, writes the BBC's Geeta Pandey in Delhi.
Shayara Bano's world came crashing down in October.
The 35-year-old mother of two was visiting her parents' home in the northern state of Uttarakhand for medical treatment when she received her talaqnama - a letter from her husband telling her that he was divorcing her.
Her attempts to reach her husband of 15 years, who lives in the city of Allahabad, have been unsuccessful.
"He's switched off his phone, I have no way of getting in touch with him," she told the BBC over phone from her home in the northern state of Uttarakhand. "I'm worried sick about my children, their lives are getting ruined."
In February, a frustrated Shayara Bano filed a petition in the Supreme Court, demanding a total ban on triple talaq which, she says, allows Muslim men to treat their wives like "chattel".
Muslims are India's largest minority community with a population of 155 million and their marriages and divorces are governed by the Muslim personal law, ostensibly based on the sharia.
Even though it has been practised for decades now, the unilateral instant triple talaq is clearly an aberration - it finds no mention in sharia or the Koran.
Islamic scholars say the Koran clearly spells out how to issue a divorce - it has to be spread over three months which allows a couple time for reflection and reconciliation.
Read more here.
Tuesday, April 12, 2016
From the Washington Post:
There’s this persistent myth in America that about half of all marriages end in divorce.
In fact, the figures are significantly lower, as new graphics by Nathan Yau of Flowing Data demonstrate.
Yau explains that this myth simply stems from bad math – dividing the divorce rate by the marriage rate in a given year. In 2014, there were 8.7 divorces and 17 marriages per 1,000 women in the United States, he says, citing figures from the American Community Survey. If you divide the first number by the second number, you get 51 percent.
The problem is that the people who are marrying each other in 2014 aren’t the same as the people who are divorcing each other in 2014. If you look at the data over a longer period of time, it becomes clear that the divorce rate is lower than half.
As Claire Cain Miller wrote at the Upshot, the divorce rate peaked in the 1970s and early 1980s and has been declining since then. In fact, if current marriage and divorce rate continues, only about one-third of American marriages will end in divorce, the Upshot’s Justin Wolfers has calculated.
But the rates are much higher for some groups than others, as Yau’s graphs show.
Read more here.
Monday, April 11, 2016
From Ventura County Star:
Domestic violence was thrust into the forefront of the Jane Laut trial, which concluded last week when jurors found the Oxnard woman guilty of first-degree murder for killing her husband, Dave, at their Oxnard home in 2009.
During the trial, the 58-year old woman claimed she was raped, beaten and emotionally abused by her husband during their 29-year marriage. She said she acted in self-defense and shot him after he threatened her, their dogs and son, Michael.
Dave Laut's family said her claims of abuse were complete lies and an excuse for murder.
Jurors who talked to The Star said even if she was battered by her husband, the abuse did not justify her killing him.
One juror said Jane Laut's family "would have supported her" and "murder wasn't the way out."
LEAVING THE ABUSER
Experts in domestic abuse and battered woman syndrome, however, said the psychological distress victims undergo is complicated by various factors that keep a woman from leaving an abusive partner.
"You have to understand that there is an addictive quality to these relationships," said Mindy Puopolo, associate professor of psychology at California Lutheran University. "These relationships provide an emotional equilibrium where the violence becomes the norm."
Puopolo, who runs Cal Lutheran's Intimate Partner Violence Program, said victims were often raised in abusive environments and "can't tolerate a loving relationship without violence."
Read more here.
Sunday, April 10, 2016
From The Washington Post:
A federal judge in Mississippi ordered the state to drop its ban on adoptions by same-sex married couples, saying Wednesday that it doesn’t pass muster under the Supreme Court’s 2015 landmark marriage ruling.
The law was said to be the last of its kind in the U.S. But efforts to skirt the full implementation of the Supreme Court’s decision in Obergefell v. Hodges using laws described as “religious freedom acts” remain alive and well in a number of Republican-led states along with measures permitting discrimination against transgender people.
The state’s prohibition on adoption by same-sex couples was enacted in 2000, as state and federal courts began the process of legalizing same-sex marriage, and reads, simply, “Adoption by couples of the same gender is prohibited.”
It was challenged by four lesbian couples wishing to adopt children either privately or through the state’s foster care system.
Judge Daniel P. Jordan III, of the U.S. District Court for the Southern District of Mississippi, called the state’s defense of the law “tepid,” based mostly on issues of standing, and which agency or part of government could or could not be sued.
Saturday, April 9, 2016
From USA Today:
A social media campaign by opponents of a restrictive new Indiana abortion bill has prompted women to call Gov. Mike Pence's office to report on the status of their menstrual cycle.
The measure, signed into law last week by Pence, a Republican, makes Indiana only the second state to prohibit a woman from seeking an abortion because her fetus was diagnosed with a disability such as Down syndrome. It also prohibits abortions when they are sought based on the gender or race of a fetus and requires the remains of miscarried or aborted fetuses to be interred or cremated.
Pence, a social conservative with a long track record of opposing abortion, described the new restrictions as a “comprehensive pro-life measure that affirms the value of all human life,” The Indianapolis Star reports.
The "Period for Pence" group calls on supporters to "Let Governor Mike Pence know what you think about his intrusive HEA 1337 bill. Women should have the right to make their own medical decisions!"
It includes purported calls by women who said they took up the suggestion to call the governor:
Caller: "I need to get a message to the Governor that I am on day three of my period. My flow seems abnormally heavy, but my cramps are much better," one woman called to say.
Read more here.
Friday, April 8, 2016
From ABC News:
Thousands of Poles took part in street demonstrations on Sunday to protest a possible tightening of the country's abortion law, already one of the most restrictive in Europe.
The rallies in Warsaw and other cities were held under the slogan "No to the torture of women" and came as the influential Roman Catholic Church launched a campaign for a total ban on abortion, something supported by Prime Minister Beata Szydlo and ruling party leader Jaroslaw Kaczynski.
Abortion is currently illegal in Poland in most cases but there are exceptions if the pregnancy poses a threat to the woman's health or life, if it results from a crime like incest or rape or if the fetus is damaged.
Protesters say a total ban would lead to women dying or force them to travel to other countries for abortions. In Warsaw they strung up coat hangers, a symbol of primitive underground abortions.
The current abortion law dates to 1993 and was a compromise between the country's liberal and Catholic circles.
Read more here.
Thursday, April 7, 2016
From The Wall Street Journal:
India’s Supreme Court is considering petitions that challenge Muslim laws governing marriage on the grounds that they discriminate against women, a charged issue that risks angering the country’s orthodox Muslims.
A panel headed by the chief justice that is hearing the petitions directed the government this week to release an official 2015 report that looks at the impact of some of India’s religion-specific laws on women’s rights and recommends legal reform.
Among the petitioners calling for change is Shayara Bano, a Muslim woman whose husband, after 13 years of marriage, divorced her by triple talaq, a practice that allows Muslim men in India to leave their wives unilaterally and often instantaneously by saying “talaq,” meaning divorce, three times. Other similar petitions were put together by the court and are being heard at the same time.The next hearing in the case is expected in May.
The Indian constitution protects gender equality, but on issues of marriage, divorce and inheritance, different religious communities are governed by their own so-called personal laws. Whether a person is subject to those laws is usually determined by their religion at birth.
Muslim clerics and scholars have rebuffed demands for unifying personal laws into a common civil code for all Indian citizens—advocated by Prime Minister Narendra Modi’s Bharatiya Janata Party—rejecting what they call attempts to interfere with their religious practices in Hindu-majority India. There are more than 170 million Muslims in the country out of a 1.2 billion population.
Muslim women’s rights groups argue that the practice of triple talaq misinterprets the Quran and is protected by orthodox Muslim men to perpetuate patriarchy. In her petition, Ms. Bano asks the court to declare it illegal as it “practically treats women like chattel,” infringes their “basic right to live with dignity” and violates their fundamental rights to equality and life guaranteed under the constitution.
Read more here.
Wednesday, April 6, 2016
From California Lawyer:
There’s a well-known movie, My Cousin Vinny starring Joe Pesci, about an inexperienced New York attorney who is called to Alabama to represent his cousin in a murder trial. Much of the humor in the movie is driven by Vinny’s unfamiliarity with Alabama criminal procedure, and his seat-of-the-pants way of overcoming his lack of procedural knowledge, ultimately winning the trial (sorry for the spoiler, but the movie ismore than twenty years old now), and saving his cousin and his cousin’s friend from death row.
Unfortunately, most of us do not have the brashness and audacity of Vinny Gambino, nor do we have infinitely forgiving procedural rules which can be overcome by audience-pleasing quips and pratfalls. If we as attorneys fall afoul of procedural rules, very often, our clients suffer. A blown deadline can result in the loss of a lawsuit or appeal and may buy the lawyer a legal malpractice lawsuit.
In the twenty years since I started doing appellate work and reviewing appellate opinions (both published and unpublished), I have seen repeated mistakes made by attorneys who may be experienced in trial work, but who are not as familiar with appellate work. Often, these mistakes prevent a successful appeal.
Here are a few of the common mistakes and pitfalls I have observed over the years, which can lead to difficulties in pursuing and prevailing on an appeal
1. FAILING TO ADDRESS SIGNIFICANT ISSUES AT TRIAL
When litigating and trying a case, it is natural to focus on the issues at hand, and not on what could possibly happen if one of the parties decides to appeal later on. But it’s not a good feeling, and it does nothing to engender confidence in you by your client, if a case you worked on is appealed, and the appeal is denied because the basis for the appeal is an issue that was never adjudicated at trial.
Read more here.
Tuesday, April 5, 2016
From LA Times:
Bachelor No. 647, a willowy lab tech in a blue polo shirt and thick glasses, squirmed as his eyes darted from one corner of the low-ceilinged hotel ballroom to the other.
Standing to his right, his mother told those gathered that her now-30-year-old had weighed 14 pounds at birth. He's responsible and industrious, she said, juggling graduate studies and work. His hobbies include fishing, hiking and reading.
"He has everything ready. He owns a home," she said in Korean before handing the microphone to her son.
He apologized for his poor Korean and switched to English. "I don't know. I guess I'm looking for a nice girl who's outgoing, and that's it," he said.
In the audience, Korean parents filling nine tables each hunched over a list, pens and highlighters in hand, with the seriousness of bidders eyeing a prized work of art. Some scribbled notes; some circled entry No. 647, which read: "Son — 30 years old." A hushed sense of purpose and the cloying scent of air freshener hung in the room.
Wearing color-coded and numbered name tags — red for daughters, blue for sons — the parents were there to tackle what one organizer called the biggest social issue facing the Korean immigrant community: Young men and women are too busy with their lives and careers to start a family.
"Seek, and ye shall find," Simon Jung, the night's emcee, told the crowd, citing Matthew 7:7. "Do you want a good son-in-law? Then you have to seek, you have to find."
Read more here.
Monday, April 4, 2016
From New Jersey Law Journal:
A New Jersey judge has ruled that a noncustodial parent may satisfy some of his or her child support obligation by making payments directly to an unemancipated child who is over the age of 18.
Ocean County Superior Court Judge Lawrence Jones issued his unpublished ruling in Kayahan v. Kayahan on Dec. 28, and it was released by the judiciary on March 22.
Jones said that in cases where the unemancipated child has demonstrated a certain level of maturity and financial acumen, it may be more appropriate for the child to receive some of the money rather than have it go through the custodial parent.
"When an unemancipated child is over 18 years old, a court in its discretion may permit the noncustodial parent to pay part of his or her child support obligation directly to the child, under certain circumstances," Jones said.
"Such conditions include the child's utilization of the funds only for specifically earmarked and pre-approved expenses, along with an ongoing requirement that the child provide documented accountings of the use of the funds to both parents," he said.
While the plaintiff's attorney in the case said he thought direct-pay arrangements between noncustodial parents and children could be mutually beneficial, at least one family law attorney not involved in the case disapproved of Jones' decision.
"The ruling inappropriately interferes with the statutory right of the custodial parent to collect child support payments," said Amanda Trigg, adding that she was relieved that the decision has not been published and cannot be cited as precedent.
Read more here.
Sunday, April 3, 2016
Jeffrey A. Parnes has posted on SSRN his recent article Federal Constitutional Childcare Parents, 90 St. John's Law Review Issue 4 (forthcoming 2017). Here is the abstract:
The U.S. Supreme Court has long recognized federal constitutional childcare rights in parents that may not be easily diminished or eliminated by government. Yet it has allowed these childcare rightsholders to be chiefly defined by state laws. The relevant state laws vary widely, dependent upon such factors as biological ties, functional parenthood, contracts, and the avenues to conception.
Deference to state lawmaking here is unique. No other federal constitutional rightsholders are so significantly defined by state statutes and precedents. This deference has resulted in significant interstate variations in de facto parent, equitable adoption, presumed parent and surrogacy matters, as well as in significant problems that can only be remedied by further U.S. Supreme Court pronouncements. The high court should soon address important childcare parent issues, including paternity opportunity and gestational carrier interests during assisted reproduction; childcare interests for functional parents; the limits on parental and prospective parent waivers of federal constitutional childcare rights; and, clearer guidelines on the possibility of nonparental state childcare laws, as with those benefiting grandparents and stepparents.
From ABC News:
A law that perhaps unintentionally failed to protect domestic violence victims in same-sex relationships appears to be unconstitutional, and now South Carolina's high court is trying to decide what to do.
The court was asked on Wednesday to weigh in after a woman tried to get a protective order against her former fiancée, also a woman, and was denied. The state's domestic violence law defines "household members" as a spouse, former spouse, people with a child in common, or specifically men and women who are or have lived together — but not unmarried same-sex couples.
The issue has come up in at least one other state since the U.S. Supreme Court's decision last summer legalizing gay marriage nationwide. Earlier this month, the Ohio Supreme Court adopted the use of gender-neutral references in family court cases, a ruling that covers divorce, child support and domestic violence. Other states, such as California and Massachusetts, proactively changed the language in their laws, according to Beth Littrell, a senior attorney with Lambda Legal.
South Carolina Chief Justice Costa Pleicones said the handling of domestic violence situations isn't as clear as the gay marriage ruling from the higher court case.
"The only people who are not protected under this statute right now are same-sex cohabiters or former cohabiters, is that it?" Pleicones said in court Wednesday, according to a video of arguments archived on the court's website. "This statute is pretty clearly unconstitutional in its discriminatory impact upon same-sex couples. So tell me, what's the remedy?"
Bakari Sellers, an attorney for the woman who brought the case, argued the domestic violence provision can be changed to include all couples.
"The state has a legal interest in protection of all its citizens from domestic abuse," he said.
More than two decades ago, Sellers noted, state lawmakers intentionally made the law restrictive to male-female couples. This change, Associate Justice Don Beatty said, makes clear that lawmakers were specifically keeping same-sex, unmarried couples from being included under South Carolina's criminal domestic statute.
Read more here.
Saturday, April 2, 2016
From CBS News:
A California family appealed Tuesday to the state's highest court in their fight to keep a six-year-old foster child who was removed from their home after a lower court said her slight Native American heritage requires that she live with relatives in Utah.
The family's lawyer, Lori Alvino McGill, filed the request for the California Supreme Court to hear the appeal. McGill also requested that custody of the child named Lexi be returned to Rusty and Summer Page until the appeal is decided.
The Pages have fought efforts under the federal Indian Child Welfare Act to place Lexi with relatives of her father, who is Native American. The Pages argued that Lexi has lived with them since the age of two and knows no other life.
However, a court found that the Page family had not proven the child would suffer emotional harm by the transfer.
The Pages have three children and want to adopt Lexi, who is 1/64th Choctaw on her birth father's side.
Lexi was 17 months old when she was removed from the custody of her birth parents. Her mother had substance abuse problems, and her father had a criminal history, according to court records.
The child cried and clutched a stuffed bear as Rusty Page carried her out of his home near Los Angeles on Monday and Los Angeles County social workers whisked her away in a waiting car.
Distraught and weeping, Page shared his foster daughter's parting words with CBS Los Angeles: "Don't let them take me. I'm scared. I'm scared. Don't let me go."
Read more here.
Friday, April 1, 2016
"What would a society look like without marriage?"
Thursday, March 31, 2016
From The Missouri Times:
Jasha McQueen created four embryos with her then-husband through in vitro fertilization (IVF) in 2007. Two of those embryos became her twin sons, but the other two have become the subject of a lengthy and grueling court battle when McQueen and her husband started divorce proceedings in 2010. McQueen claimed possession of those embryos when they were created.
When she did not receive them, she began a fight for custody.
The legal framework that would make that possible is thanks to a bill sponsored by Rep. John McCaherty, R-High Ridge, that would recognize human embryos as human life, meaning in cases of divorce, they would be divided as children are in custody battles instead of as possessions are divided. The judge in these proceedings would also have to rule in favor of the best interests for the embryo to come to term.
“In essence, what the judicial system is doing… they have no clear direction what to do with frozen human embryos so they are treating them as property,” McCaherty said during testimony. “This bill gives some direction to the courts. Either parent could pay fees to allow them to be frozen in perpetuity. I don’t believe it is in the best interest of the state to be making decisions on the issue of life when there is a parent that wants to raise a child.”
McQueen also testified, saying that her relationship to her embryos was already personal.
“These are two of my babies that I would like to give them the opportunity to be born,” she said. “It is a compassionate bill that looks at the people going through this process that is incredibly grueling.
“We are terminating this person’s embryo over their objections. That should not happen. There are people… that are grieving parents at the hands of a judge. I feel like the judge and the state of Missouri are killing my babies.”
While opposition to the resolution seemed to sympathize with McQueen’s plight to an extent, they had deep concerns about the way in which this bill would enable her to obtain those embryos.
Carla Holste, a family law practitioner with the Carson and Coil law firm, noted that redefining embryos as life under law could have disastrous unforeseen consequences for the IVF industry.
Read more here.
Wednesday, March 30, 2016
From The New York Times:
Indiana’s governor signed a bill on Thursday that adds broad limits to women’s access to abortions, banning those motivated solely by the mother’s objection to the fetus’s race, gender or disability, and placing new restrictions on doctors.
The law, which passed both chambers of the Republican-controlled General Assembly with large majorities, builds on Indiana’s already restrictiveabortion rules, and was cheered by anti-abortion groups that had encouraged Gov. Mike Pence to sign it.
“We are pleased that our state values life no matter an individual’s potential disability, gender or race,” Mike Fichter, president and chief executive ofIndiana Right to Life, said in a statement. “We also believe that the other measures in the bill are positive steps forward for providing dignity and compassion.”
The bill is among several limiting abortion that have passed conservative legislatures in recent years, but the sheer number of restrictions in Indiana’s legislation made it distinct.
In addition to holding doctors liable if a woman has an abortion solely because of objections to the fetus’s race, sex or a disability, like Down syndrome, the law restricts fetal tissue donation and requires doctors performing abortions to have admitting privileges at a hospital or to have an agreement with a doctor who does.
“Seeing them all in one place, that is very striking,” said Dawn Johnsen, an Indiana University law professor who has been an abortion rights advocate. “It’s like the kitchen sink: Everything that isn’t already in the law. And the law is already really restrictive.”
Mr. Pence, a Republican, said he signed the bill because he thinks “that a society can be judged by how it deals with its most vulnerable — the aged, the infirm, the disabled and the unborn.”
The bill, he said in his signing statement, “will ensure the dignified final treatment of the unborn and prohibits abortions that are based only on the unborn child’s sex, race, color, national origin, ancestry or disability, including Down syndrome.”
Read more here.
Utah will now require doctors to provide anesthesia to women having abortions at 20 weeks of pregnancy or later.
From Huffington Post:
As the election year progresses, many candidates in both parties and at every level will say it. Child-welfare professionals work mightily to make it a reality. Our country’s laws and policies are intended to promote its essential truth: Every child deserves to grow up in a safe, permanent and loving family.
Yet tens of thousands of children in the U.S. spend too much of their young lives in temporary (i.e., foster) care, often unable to return to their original families but without sufficient prospects for moving into new ones. At the same time, the number of LGBT adults serving as guardians and foster parents (many of them wanting to adopt) grows daily. And this reality has raised hopes among children’s advocates from coast to coast who see a promising, expanding pool of prospective parents for children who need them.
Even though marriage equality is now the law of the land, however — and even as we see positive developments like the recent Supreme Court decision supporting gay adoption rights - policies and practices are being promoted around our nation that impede (and sometimes prevent) members of the LGBT community from becoming parents to these waiting children. Other state efforts go even further, essentially representing a broader assault on LGBT people and their rights.
Read more here.
Hat Tip: NC