Human Rights At Home Blog

Devastating New Report on Water Affordability and Race in the U.S.

The Thurgood Marshall Institute of the NAACP Legal Defense and Educational Fund has released an in-depth report titled Water/Color: A Study of Race & the Water Affordability Crisis in America's Cities. The report lays out the history of water infrastructure and pricing in the U.S., followed by detailed studies of affordability and race in Baltimore and Cleveland.  A legal analysis lays out the legal issues under domestic laws such as the Fair Housing Act as well as the human rights protections that are violated when household water becomes inaccessible because of rising costs.  Finally, the report reviews possible policy approaches to address this life- and health-threatening issue, examining local affordability plans such as Philadelphia's as well as possible federal approaches.

The issue of rising water costs has been increasingly addressed by scholars, advocates, and international institutions.  Some communities, such as Philadelphia, have responded with concrete plans.  However, far too many local governments are still ignoring the devastating human impacts of unaffordable water, including the race-based discrimination that is an undercurrent.   As climate change progresses and extreme weather overwhelms our nation's aging infrastructure, the challenge of providing water to all, regardless of race or income, will only increase.  

Let's hope that the LDEF's report will finally put this fundamental human rights issue squarely into the national conversation, as a common challenge that must be confronted and addressed by every level of government.    

Pride Events - Beyond Parades

The month of June presents wonderful opportunities to learn more about the historical oppression of sexual minorities in the United States.  On June 18th PBS will air The Lavender Scare

The documentary tells the story of federal workers who were either fired or denied employment because they were gay.  The time was the 1950's and President Eisenhower signed an order barring gays from federal employment.   One of the people featured in the film is Frank Kameny who had organized the Mattachine Society, an early gay advocacy organization.   When a Texas congressman introduced a bill that would ban the Mattchine Society,   Kameny insisted upon testifying before congress.  Kamely became the first openly gay man to do so.

Joan Cassidy is a retired Navy captain who tells the story of living in fear that she would be discovered to be a lesbian.   Her story is featured in the documentary.

Pride parades will be held world-wide. Pride events will be held throughout the year. A listing of US and International Pride events can be found here.

In New York City tours of sites significant to LGBT history are available. Sites include the Stonewall Inn and the Gay Liberation Monumen

CNN Travel lists happenings beyond parades including Chicago's Pride Run, a Queer Family Portrait Exhibit in San Francisco, and a July 5th Niagra Falls celebration featuring the Buffalo Philharmonic Orchestra performing show tunes with a backdrop of a pride light show, and a Queer Art Walk in Seattle.  

 

Pride and Stonewall

This year celebrates the 50th anniversary of the Stonewall uprising.  Pride parades across the country celebrated the anniversary. 

Lost in some of the celebrations and certainly in the awareness of the non-LGBTQ community is the context of the revolt.  One survivor estimates that 70% of the Stonewall participants were people of color or Latinx.  One observer stated that "You have people such as Marsha P. Johnson and Sylvia (Rivera) who were very critical in that movement that started this off. They stood up for it. So many times we don’t recognize those particular leaders. They were African-American and other people of color who were really strong leaders."  While other protests had occurred, it was Stonewall that set off what was then known as the "Gay Liberation" movement.  The time was ripe.  A movement to advance equality of treatment for the LGBTQ community was due in an era that had seen the civil rights movement make strong inroads and the "Women's Liberation" movement was forming.  As with other social movements,  gay communities of color soon felt excluded from the Pride movement and formed communities of their own.

The laws in place in 1968 NYC that led to arrests of gay and trans people were specifically designed to target sexual minorities.  One law required that each patron wear three pieces of clothing identified with their birth gender if they were to avoid arrest.  Other laws, while seemingly neutral, were enforced against owners of gay bars, such as a law that prohibited serving alcohol where there was "disorderly conduct."  Gay bars were de facto considered disorderly.  

The first night of the Stonewall revolt, police began harassing, including pushing, the patrons.  This was not typical police conduct who were being paid by the bar owner to look the other way.  But this night was different in that the patrons did not remain passive. Like that one last act of aggression that pushes someone to react, enough was enough and patrons began fighting back.  The LGBTQ community at the time of Stonewall, was looking for equality of treatment.  They were far from making marriage equality a primary focus.  Indeed, their focus was human rights-centered, promoting individual dignity.  Some believe that the later focus on marriage equality subsumed the original broader and more critical human rights concerns although dignity was a major theme in Justice Kennedy's opinion in Obergfell.  

No matter what the criticism of post-1969 developments, there is no question that Stonewall ignited public and individual pride, even though at the time, those involved could not appreciate the long-term impact of their acts

New York Paid Surrogacy and An India Connection

By Sital Kalantry

Editors' Note:  This piece was originally published in the NY Daily News

The New York State Legislature banned surrogacy in 1992. The only other state that similarly criminalizes and holds all surrogacy contracts unenforceable is Michigan. New York prohibited surrogacy on the heels of a nationwide debate that ensued after a surrogate in New Jersey, Mary Beth Whitehead, sought to keep custody of her biological child.

Almost exactly a year ago today, the New Jersey legislature legalized gestational surrogacy, which is to say cases in which the pregnant woman is not also the genetic mother. Yet New York still lags behind in recognizing modern families.

Last week, I testified in Albany before the New York State Senate Judiciary Committee in favor of a bill that would legalize and regulate compensated surrogacy in New York State. In speaking to state legislative representatives, I learned that one reason some worry about allowing surrogacy is because they think women (particularly poor and minority women) will be exploited.

This is exactly the argument made by some women’s rights advocates. Catholic groups argue that because surrogates face abusive conditions in Thailand, Cambodia, and other developing countries, they will also be exploited in the United States.

The problem with these arguments is that they conflate an ideological objection to surrogacy with a prediction that surrogates in New York will be abused. Those who shroud their objections to surrogacy by pointing to the abusive conditions in other countries object to surrogacy on religious grounds or because they think women’s gestational care should never be bought and sold.

Some Catholics believe that the medical technology used in surrogacy — in vitro fertilization — is problematic because embryos could be killed in the process. Some women’s rights advocates, approaching surrogacy from a view of the world similar to “The Handmaid’s Tale,” argue that we live in a sexist world and women who operate in this world, particularly surrogates, inevitably face horrendous conditions and are dehumanized.

This top-down feminism appears in debates about surrogacy in India as well. Marxists oppose surrogacy in India because they oppose the buying and purchasing of labor more generally. These viewpoints are married to create the exact same arguments being made today in New York: that women will be exploited by surrogacy.

But like the anti-surrogacy lobby in New York, many opponents of legal surrogacy in India would still oppose it even if every surrogate was paid her a million dollars and put up in the Ritz-Carlton by intended parents.

I too worry about the unfair conditions for surrogates in India. Some are forced to live in surrogacy homes; they have no life insurance, no health insurance beyond the pregnancy, and no guarantee of payment. But unlike in India, the New York bill would provide state-of-the-art protections for surrogates in New York: legal representation, life insurance and health insurance all paid for by the intended parents. Women retain the right to terminate the contract before they become pregnant and also to terminate their pregnancy.

Even in the numerous other states in the U.S. where there is no legislation, industry actors have adopted many surrogate-protective guidelines. Surrogates in the United States additionally have the ability to seek damages from doctors, lawyers or the intended parents if they have been harmed, unlike the women who are surrogates in India.

I encourage New Yorkers to distinguish ideological arguments from facts and not to be persuaded by arguments that inappropriately refer to other countries. No one can guarantee that every surrogate will feel she was treated fairly, but the proposed New York law gives surrogates a number of very important protections and rights. Legalizing surrogacy would allow for many people in New York to fulfill their dream of becoming parents.

The U.N. Comments On The U.S. Crime of Providing Humanitarian Aid

Scott  Warren is awaiting a verdict in his Arizona trial. His crime was to provide humanitarian relief to migrants who walked over the Southwest US border.   He provided two immigrants with food, water, beds, and clean clothes.  Warren founded No More Deaths, an organization critical of the lack of humanitarian aid toward those attempting to cross the Sonoran Desert into the US.  Not coincidentally, Warren's arrest came just after No More Deaths issued a report that implicated border agents in inhuman acts toward migrants.  FBI agents claim that the two migrants were not in distress which is a curious statement about men who had walked thousands of miles and whom Warren says had blisters on their feet.  

The charges against Warren are "harboring of migrants" and "conspiring to transport and harbor migrants."  Warren's activism focuses on providing humanitarian aid and preventing the death of migrants.  Arizona has some of the highest rates of migrant deaths.  

UN experts expressed concern about the prosecution.  “Providing humanitarian aid is not a crime. We urge the US authorities to immediately drop all charges against Scott Warren,” the experts said.  

Ranking Digital Rights: Companies Register Some Improvements, But All Still Fall Short

A new Ranking Digital Rights (RDR) Corporate Accountability Index was released in late May 2019.  The 2019 RDR Index ranked 24 companies on 35 indicators across three categories evaluating their disclosure of commitments, policies, and practices affecting freedom of expression and privacy.  David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, has said that “RDR’s comprehensive, multi-disciplinary methodology sets a gold standard for the fact-finding required to assess the human rights impact of the companies that create, manage and facilitate vast digital networks and spaces.”

The RDR Corporate Accountability Index evaluates policies of the parent company, operating company, and those of selected services (depending on company structure).  US-based companies evaluated include Microsoft, Facebook, Twitter, Verizon, AT&T, Google, and Apple. 

Most companies improved scores in at least one area -- largely driven by stricter privacy laws in the EU.  But even the leading companies fell short in key areas.  Few scored higher than 50 percent, failing to even meet basic transparency standards, leaving users worldwide in the dark about how their personal information is harvested and used (often for profit) by these corporate entities .

In particular, RDR reports that companies fell short in the following areas:

• Privacy: Companies still do not adequately inform people about all the ways user information is collected and shared, with whom, and why.

• Expression: As companies struggle to curb extremism, hate speech, and disinformation, most lacked transparency about how they police content or respond to government demands.

• Governance: Most companies failed to anticipate and manage privacy and expression risks caused by their business models, and by the deployment of new technologies.Additional analysis of the RDR Index is available here.

 

The Largest Ever UPR Consultation, and More!

The United Nations Association - US will hold its annual Global Leadership Summit in Washington, D.C., on June 9-11.  Registration information is available here.  The Summit agenda, which includes the largest ever Universal Periodic Review consultation (!), is here.

The timing could not be more important.  The UN is facing unprecedented cutbacks to its human rights work, including the possible cancellation of country-specific human rights treaty monitoring as early as fall 2019.  In a joint letter to all UN member States, 399 civil society organisations have called on UN member States to urgently tackle the current funding crisis affecting the functioning of the UN human rights expert bodies.  The U.S. withdrawal from the Human Rights Council, its refusal to respond to UN Special Rapporteurs, and its recent announcement that it is developing its own "natural law" perspective on human rights, all contribute to giving cover to nations that would like to avoid human rights scrutiny.  The U.S. has the capacity to stop this downward spiral by stepping up to support the UN's human rights work.

The organizers write:  "It matters now more than ever that we make our voices heard to protect the vital work of the United Nations. With proposed bills in Congress aimed at slashing funding to the United Nations and its agencies, the UNA-USA community must come together and fight for what we know is right: Standing with refugees; demanding equality for women; protecting LGBTI rights; combating climate change; working for peace; and more. Every year in June, we convene on Capitol Hill to make sure Congress gets the message. Join us June 9–11 for the 2019 Global Leadership Summit."

 

 

Somali Torturer Liable under Torture Victims Protection Act

Despite the narrowing scope of the Alien Tort Statute, U.S. courts remain a place where, in some circumstances, torturers and human rights violators can be brought to justice.  One such case, addressing torture that occurred more than three decades ago, was resolved at the end of May.

On May 21, a Virginia jury found Col. Yusuf Abdi Ali (aka “Tukeh”) responsible for the torture of semi-nomadic Somali herder Farhan Warfaa.  Col. Tukeh was a high-ranking military commander in Siad Barre’s decades-long military dictatorship in Somalia.  The evidence established that in 1987, Mr. Warfaa was rounded up with other men from his village and taken to the Military Headquarters of the Fifth Brigade of the Somali National Army, where Col. Tukeh held command.  Mr. Warfaa testified that Col. Tukeh’s soldiers tortured and interrogated him over a period of months, and that Col. Tukeh himself shot Mr. Warfaa multiple times at point blank range, leaving him for dead.  Miraculously, he survived.  

While Col. Tukeh ultimately moved to the United States, Mr. Wafaa remains a resident of Somalia.  Tukeh, the BBC reported, was working as an Uber and Lyft driver in Washington, D.C. until May 2019.

Mr. Wafaa's case was initiated fifteen years ago, brought under the Alien Tort Statue as well as the Torture Victim Protection Act.   In the intervening years, courts dismissed the allegations of war crimes and crimes against humanity, creating new, narrower law under the ATS.  However, the TVPA claims proceeded to trial.

The jury awarded Mr. Warfaa $500,000 in damages, including $100,000 in punitive damages.

Mr. Warfaa was represented by the Center for Justice and Accountability and the law firm of DLA Piper LLP.  The pleadings and briefs filed in the case are available here.

NEW COMMISSION ON UNALIENABLE RIGHTS TO REVIEW WHERE HUMAN RIGHTS CONFLICT WITH US FOUNDING PRINCIPLES

Last week the Federal Register published notice that the State Department intends to establish a Commission on Unalienable Rights that would "provide the Secretary of State advice and recommendations concerning international human rights matters. The Commission will provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights."  The Commission will be separate from the State Department's Human Rights Bureau. 

Politico reports that “The Commission will provide fresh thinking about human rights discourse where such discourse has departed from our nation's founding principles of natural law and natural rights,” states the notice, which is dated May 22. "  Some are concerned that the reference to "founding principals" is code for suppressing the rights of women and members of the LGBT community.   

"The word  'natural' in such context is often interpreted to mean “God-given,” a phrasing that is less common in modern human rights literature but which could signal a religious component, experts said."  Secretary Pompeo said that the Commission will review "how we think about human rights inside our efforts in diplomacy." 

The Register lists Kiron Skinner as the contact person. Early in May Think Progress reported Skinner's statement that "the United States can’t focus on human rights if it wants to combat China — and that China presents the first time the United States has faced a great power competitor that isn’t “Caucasian” and that China presents "a different civilization."

Professor Robert George of Princeton University has been involved in the creation of the Commission.  ABC News reported that Prof. George is "co-founder of the National Organization for Marriage, a nonprofit that advocates against same-sex marriage, is among the 15 academics recommended to make up the panel, according to the source.  Author of the 1999 book "In Defense of Natural Law," where he argued against homosexuality and abortion rights and in favor of religious liberty, George also wrote the original concept note that outlined a vision for the commission, the source said.

US IN TOP TEN OF MOST DANGEROUS COUNTRIES FOR WOMEN TO LIVE

A study by the  Thompson Reuter Foundation looked at what countries were the most dangerous ones for women.  One western country was included:  the United States.  

The Foundation queried 500 experts to ask in" which countries they believed women were most at risk. Countries were ranked in six key areas: health care, sexual violence, non-sexual violence, cultural practices, discrimination and human trafficking."  Sexual and non-sexual violence against women was the factor that placed the United States in the top ten.  The experts recognized that the #MeToo movement exposed serious problems of sexual violence experienced by US women.  The US ranked third with Syria when assessing on " sexual violence, including rape, sexual harassment, coercion into sex and the lack of access to justice in rape cases." The US overall ranking is 10.  

The factors considered in determining the ranking were:  health care, sexual violence, non-sexual violence, cultural practices, discrimination, and human trafficking.

The overall rankings considering all factors are:

1.  India

2. Afghanistan

3.  Syria

4. Somalia

5.  Saudi Arabia

6.  Pakistan

7.  Democratic Republic of Congo

8.  Yemen

9. Nigeria

10.  The United States

 

Massachusetts Town is First in Nation to Provide Free Menstrual Products in Public Restrooms

Can it really be true, that Brookline, MA is the first municipality in the US to provide free menstrual products in public restrooms?   The historic vote took place at a Town Meeting earlier this week.  Notably, because not everyone who uses menstrual products identifies as female, the products will be available in all public restrooms, regardless of gender.   

Eva Stanley, a local high school student supporting the measure, noted that this "would allow everyone who menstruates the dignity of being able to cope with their period when and where they need to.  It's that simple."  Added Carter Much, another local high school student speaking on behalf of the initiative, "[m]aking menstrual hygiene products free in all of Brookline's public bathrooms treats this totally normal and natural bodily function the way we treat all others.  This is what equity is all about."

Readers, let us know -- is Brookline, MA really the first municipality in the country to take this very basic step that recognizes the human rights of about half of the population? 

The town of  Brookline, population 60,000 estimates that this initiative will cost about $7300 in the first year, with most of that cost being the initial investment in dispensary machines.  Is this cost really prohibitive for other municipalities? 

The Supreme Court Can’t Avoid Sex-Selective, Race-Selective, and Disability-selective Abortion Bans Forever

By Sital Kalantry

After considering the case in fifteen consecutive conferences, the Court in Box v. Planned Parenthood of Indiana and Kentucky gave us a rare window into its politics. In a carefully negotiated compromise, the Court denied certification on the U.S. Court of Appeals for the Seventh Circuit’s finding that laws that banned sex-selective, race-selective, and disability-selective abortion are unconstitutional. In addition, the Court summarily (without further briefing or oral argument) reversed the Seventh Circuit’s finding that Indiana’s law that fetal remains must be disposed of like human remains is unconstitutional.

On the question of disposal of fetal remains, Justice Ginsburg points out that the litigants used the weaker “rational basis” test rather than the “undue burden” standard articulated in Planned Parenthood v. Casey for “strategic” reasons. It is also for strategic reasons that pro-choice advocates have tried to keep what pro-life advocates call “anti-discrimination” provisions as far away from the Court as possible. While there were numerous amicus briefs from pro-life groups urging the Court to take certification in the case, no pro-choice group wrote an amicus brief.  Sex-selective abortion bans were adopted by Pennsylvania along with a host of other abortion restrictions in 1989. Planned Parenthood challenged a number of restrictions but didn’t challenge the one on sex-selection. 

In the last decade, states started to ban sex-selective abortion on the false empirical premise that women, particularly Asian American women, abort fetuses when they learn of its sex. Proponents of those bans make reference to laws and practices in other countries to justify bans in the United States. Similarly, Justice Thomas also refers to countries where sex-selective abortions are widespread in his opinion. For example, he cites to an article I wrote about sex-selective abortion in India. Vice President Pence who signed the Indiana laws when he was governor of Indiana released a statement urging the United States to follow the lead of other countries around the world and ban sex-selective abortion.

Pointing to the disproportionate abortion rate among African-American and Hispanic women, Justice Thomas suggests that race-selective abortion bans are necessary to prevent eugenics. Race-selective abortion bans prevent a woman from aborting her own fetus on the basis of its race. The text of the race-selective abortion ban was crafted to mirror the language of sex-selective abortion ban. However, the analogy becomes absurd when the actors with the purported racist and sexist intent are brought into the picture. It makes little sense to say that minority women obtain abortions because they object to the race of their own fetuses. The concept of “race” itself is socially constructed so it is not even possible to know the “race” of a fetus before it is born.

The reality is that among the so-called “anti-discrimination” bans, the only type of abortions that are known to occur in the United States are disability-selective abortions. Some women who may not want to raise a child with a severe disability might choose to abort a fetus in that situation. This issue deeply divides liberal communities with some advocates arguing that aborting fetuses with disabilities such as down syndrome devalues people with down syndrome.

For the moment, Justice Thomas agreed with his liberal colleagues to punt this complicated question to a different day, but he is right to say that the Court can’t avoid it forever. Rarely does the Supreme Court explain why it refuses to hear cases on appeal, but in Box v. Indiana, they stated that they refused to hear a challenge to the Indiana bans because the Seventh Circuit was the only appeals court that had ruled on the issue. Recently, a Federal judge granted a temporary injunction against Kentucky’s bans. That case will likely be appealed to the Federal Court of Appeals for the Sixth Circuit and their opinion might diverge from the judgment of the Federal Court for the Seventh Circuit. If that happens, it would create the circuit-split that would make granting certification more compelling. Bans on specific reasons for abortion could appeal to members of the Court that do not want to drive a truck through Roe v. Wade, but are willing to kill it with a thousand cuts. 

 

Burying Reproductive Rights - Box v Planned Parenthood

By Margaret Drew

The Supreme Court upheld the lower court's a portion of the lower courts decision that an Indiana law that requires doctors who perform abortions to see that fetal remains are either buried or cremated.   The Indiana provision requires those who perform abortions to either bury the fetal remains or cremate them.  According to the court, when Planned Parenthood of Indiana and Kentucky brought this case to challenge the disposal requirement, they did not argue that the requirement placed an undue burden on women seeking abortions. That left the court to decide the constitutionality of the law using a lower, rational basis standard.

But the regulations do burden women albeit indirectly. Every time a new condition is imposed upon doctors who perform abortions their costs are increased and they are under additional scrutiny.  Higher costs, increasing professional and personal pressures will likely push an increasing number of doctors to abandon the practice.

So this is how reproductive rights will be de facto abolished.  Burden the doctors to such an extent that the real costs of providing abortions become untenable.  As the majority of the Roberts court may seek to undo abortion rights incrementally, a successful legal challenge to the burdening laws will likely be cumulative.  Eventually, details on the increased costs will be available, along with evidence of the cumulative personal costs to the doctors.  At some point, the case might be made as to undue burdens, but in the meantime, the weightiest burden lies on those women in need of abortions.

 

 

 

Second Circuit Reinstates Genocide Suit Against BNP, Recognizes Jus Cogens Norms

On May 22, the Second Circuit Court of Appeals revived a civil lawsuit against BNP Paribas SA, brought by alleged victims of a genocidal regime in Sudan who seek to hold the French bank liable for aiding in the government’s atrocities.  The twenty-one plaintiffs are Sudanese refugees who now reside in the United States.  The plaintiffs’ complaint alleges that BNP processed thousands of illegal transactions through its New York offices, which financed weapons purchases and funded a militia in a “well-documented genocidal campaign.”

The lower court had dismissed the lawsuit in 2018 based on the erroneous conclusion that it was barred by the act of state doctrine, i.e., the doctrine that bars a court from declaring a foreign nation's laws to be ultra vires.  But as the Court of Appeals explained in its 3-0 opinion, "[c]onsidering the lack of evidence introduced by BNPP that genocide is the official policy of Sudan, and the countervailing evidence that genocide blatantly violates Sudan’s own laws, we conclude that there is simply no ‘official act’ that a court would be required to ‘declare invalid’ in order to adjudicate plaintiffs’ claims.” 

In an addition, in a portion of the ruling that holds potential significance for other cases, the Second Circuit held that “even for purposes of act-of-state deference,” the court cannot deem “genocide, mass rape, and ethnic cleansing” as valid state actions because such acts “violate jus cogens norms.”

The full Second Circuit opinion is available here.

Films Tell the Story

The 2019 Human Rights Watch Film Festival will be screening films at Lincoln Center in New York City from June 13 through June 20.  According to Human Rights Watch, the film festival serves to "bear witness to human rights violations and create a forum for courageous individuals on both sides of the lens to empower audiences with the knowledge that personal commitment can make a difference. The film festival brings to life human rights abuses through storytelling in a way that challenges each individual to empathize and demand justice for all people."

Two of this year's films are focused on human rights in the U.S.:  Accept the Call, and When We Walk.

Through the intimate story of a Somali immigrant in Minnesota and his son, Accept the Call explores racism and prejudice against immigrants, the rise of targeted recruitment by radicalized groups, and the struggles of Muslim youth growing up in the US today. 

In When We Walk, a father with rapidly advancing multiple sclerosis soon learns that the harsh restrictions of the US Medicaid system prevent him from accessing the services he needs to live life as fully as possible, and from being the dad he wants to be for his young son.

Of course, the HRW Film Festival is not the only human rights film festival in the U.S.  Another one to watch is the ACT Human Rights Film Festival at Colorado State University.  Next year's ACT Human Rights Film Festival will be held April 3-11, 2020.

Abortion, Alabama and The Suppression of Women's Autonomy

Ultimately women's health decisions, including reproductive rights, are about women's autonomy.  The abortion "debate"  is about some men's efforts to limit women's control over their bodies and their futures.  Some men make decisions whose consequences fall only on women.  Whether or not to reproduce is a decision that should be private and without state interference.  But male supremacists cannot permit women to have a voice in choices that will impact them for the rest of their lives.   Reproductive rights are perhaps the last arena for men to control women.  The laws, at least in theory, have assured that women have equal access to employment and education.   While in practice women often struggle to achieve equity and respect, under the law equal treatment has been supported through state and federal statutes and supporting case law.

But legislation on reproductive rights is not an area where equality and autonomy are respected.  Legislation to limit women's autonomy on reproductive health is perhaps the last aspect of women's autonomy that can be effectively curbed by the (primarily) white, male legislators.  Force a woman to have children and you succeed in assuring that obtaining education and professional status for women is less likely.  Conflating religious beliefs with legislative goals is improper under the separation of church and state.  The pretext of religious and moral commitment easily reveals itself to be a sham.  "Pro-life" legislation such as that in Alabama actually extends to unborn fetuses only. Birthed children lose protection as soon as they leave the womb.

The exceptions in the Alabama legislation that permit abortion in the face of serious health threats to the mother are shams within a sham.  The only straightforward exception is where there is a medical emergency where continuation of the pregnancy would result in the death of the mother or impairment such that the mother would result in loss of a serious bodily function.  This is by far a minority of reasons why abortion is elected. The act carefully delineates that second exception, serious medical risk, but serious medical risk does not include mental or emotional distress. For an abortion to be approved under those conditions the treating physician's opinion is insufficient.  In addition, a psychiatrist must examine the patient and find that the woman's condition would result in her death or the death of the child, if born.  And should the woman meet these prerequisites, despite a shortage of psychiatrists in rural Alabama, the abortion must be performed by a physician licensed by Alabama and in an Alabama Hospital in which the physician has privileges.  Guess how many Alabama Hospitals permit abortions to performed on premises?  Denying privileges to doctors who perform abortions is an impossibly slow process by design. Then there are consequences for the mother who has a termination under these conditions.  Will the state be prepared to take any child the woman might give birth to later?  Will the state determine that danger to the child will not be problematic because they will take the child at its birth?  

Oh- and that exception for the health of the mother?  Well - post-abortion and within 180 days of the procedure, a second physician must certify in writing that the abortion was medically necessary.  That physician shall not be subject to liability for the certification.  If the performing physician is unable to find a certifying physician, prosecution will result.  If one is found, the certification will be "prima facie evidence for a permitted abortion",  The language of prosecution.

But returning to the premise that Alabama is not pro-life:

Alabama provides limited education for children K-12.  The state ranks 49th in children who graduate high school and are prepared for college.  Alabama refuses to expand Medicaid, which would vastly enhance the ability of mothers and children to receive proper medical care.  Child abuse rates reduce when women have access to abortion.  Abortion rates reduce when women have access to contraceptives.  The United States leads the developed countries in maternal death rates.  Hardly  pro-life or pro-children!  Childcare largely remains the burden of mothers, with little in the way of government subsidies.  Alabama executes the convicted at high rates, even when there are solid legal doubts as to whether the individual received a fair trial. 

 Alabama legislators and those of other states that have enacted severe anti-abortion laws are not pro-life.  They are anti-women.  

 

Weaponizing Science in the Service of Human Rights

Science Magazine and the American Association for the Advancement of Science will host a special webinar on June 6, titled Weaponizing Science for the Greater Good. 

According to the announcement:

"The scientific method has been successfully applied to advance human health and well-being. The process of experimentation, ethical oversight, and critical review of empirical data enables verifiable truths to be uncovered and knowledge to be advanced. Can the same scientific method also be applied to issues of social justice and human rights? Can we use science to improve the well-being of abused children, to fight racism and hatred, and to stop the spread of fear and ignorance? This webinar examines the practice of applying scientific standards of data collection, analysis, and presentation to further social justice and serve core human rights."

For more information and to register, click here.

 

European Union Criticizes Human Rights and Democracy in the U.S.

On May 17, the European Union issued its annual report on human rights and democracy worldwide, including a section surveying developments in the U.S. from the E.U. perspective.  While there are a few bright spots -- for example,Washington State's abolition of the death penalty -- most of the news is alarming.  The report notes the Trump Administration's disengagement from human rights institutions and the difficulty that the EU has had in initiating a consistent dialogue with the administration around these issues.  The EU report identifies the administration's family separation policy and the further limitation of refugee admissions as additional human rights low-points.  Further, the E.U. notes, the Administration has backed away from plans to close Guantanamo.

The report chronicles in some detail the E.U.'s active efforts to curtail the death penalty in the U.S., including a number of state-level interventions.  In at least one case in which the E.U. weighed in, a Governor commuted a sentence to life imprisonment.

The E.U. report includes some important lessons for U.S. human rights activists.  A significant aspect of human rights is its universality.  The engagement of the E.U. in chronicling U.S. back-sliding brings home the power that U.S. activists can gain from framing domestic issues in human rights terms.  In addition, the E.U. critique demonstrates that the current Administration can run, but it can't hide.  While it may resign from UN bodies and refuse to cooperate with UN Human Rights monitors, many of the human rights issues facing the U.S. are in plain sight, and the U.S. will continue to be criticized for them until it begins to take human rights seriously.

What's Up With WhatsApp and Spying On Human Rights Advocates

Last week WhatsApp, which is owned by Facebook, reported a security breach.  Reuters reported that the company indicated that the spyware had signs of coming from a government who was using spyware coming from a private company.  WhatsApp is encrypted end to end preventing third-party access.  Disturbingly What's App reported that select human rights groups were the likely targets of the breach.  

What's App informed users that it believed the spyware was probably developed by an Israeli company.  The US Department of Justice was informed of the breach so they could assist the investigation.  

As it turns out a London-based human rights lawyer is suing to stop the use of the very software that was used to hack him.  The spyware permitted access to his phone, including photos, messages, and the operating system.  ABC News reported that the unnamed lawyer had noticed suspicious activity on his phone. The lawyer is suing regarding the use of the software  Pegasus developed by NSO Group, the Israeli company.  Reportedly the software is being sold to regimes who use it to spy on dissidents, human rights activists as well as journalists.

The lawyer whose phone was hacked is a member of the legal team representing  "Omar Abdulaziz against NSO, and that hack [of his WhatsApp messages] was linked to the Khashoggi case. This same technology was used to spy on the communication between Omar Abdulaziz and Jamal Khashoggi, the lawyer said."

While European regulators investigate the breach, the use of the spyware is a message to all engaged in human rights work.  Governments on every continent are wary of, if not hostile to human rights advocates.  If you or your organization notice unusual activity on your phone or other devices, it might be worth a call to theUniversity of  Toronto based "Citizens Lab" that has made prior investigations into the use of Pegasus software.  In the meantime, WhatsApp cautions that users should download the latest version of WhatsApp to maximize protection from hackers.

 

 

Revisiting Life without Parole in Alabama One Prisoner at a Time

By Guest Blogger Prof. Courtney Cross

In 2018, the Alabama legislature reduced the maximum sentence for drug trafficking from life without parole to life with the possibility of parole. While this amendment represents a welcome shift away from imposing life without parole sentences on non-violent defendants, it falls short of enacting large-scale reform for several reasons. First, the new law is not retroactive and there are more than 20 individuals serving life without parole sentences in Alabama for manufacturing or trafficking illegal drugs. Second, defendants may still be sentenced to life without parole if their criminal histories trigger harsher sentencing under the state’s mandatory habitual felony offender sentencing enhancement. Several of the above individuals are serving life without parole because their criminal records mandated this sentence. Lee Carroll Booker, for example, is a 76-year-old army veteran serving life without parole for growing marijuana plants in his backyard: his over 30-year-old robbery convictions mandated this outcome despite recognition from then-Alabama Supreme Court Chief Justice Roy Moore that the sentence was excessive. Mr. Booker and others with similar sentences will end up dying in prison for non-violent drug crimes.

Geneva Cooley faced a similar fate after being arrested in 2002 with a gym sock containing heroin and hydromorphone pills. 72-year-old now, she was 55 at the time of her arrest. After a brief trial, she was found guilty of trafficking the heroin and the pills. She was also found guilty of two counts of failing to obtain a tax stamp for the drugs. She was sentenced to life without parole on the heroin charge which, at the time of her sentencing in 2006, was a mandatory sentence. Pursuant to the habitual offender law and the trial court’s finding that Ms. Cooley had two prior felony convictions, her other trafficking charge and the tax stamp charges resulted in concurrent life sentences. Ms. Cooley’s direct appeals and post-conviction petitions had all been denied until 2019 when she and her team of attorneys from the clinical program at the Culverhouse School of Law at the University of Alabama decided to file another post-conviction petition.

This time, the attorneys alleged that Ms. Cooley’s sentence violated the 8th Amendment of the U.S. Constitution and pointed to the recent removal of life without parole from the drug trafficking scheme as well as efforts in other states and at the federal level to limit the use of life without parole for non-violent crimes. Ms. Cooley sought to be resentenced to life with the possibility of parole—the sentence she would receive if convicted today. The newly-elected district attorney in Jefferson County did not oppose the resentencing and filed a response that echoed Ms. Cooley’s arguments. After an evidentiary hearing in which both Ms. Cooley and the executive director of Alabama’s Sentencing Commission testified, Judge Stephen Wallace—who did not preside over Ms. Cooley’s original trial—ordered that she be resentenced to life with the possibility of parole pursuant to his own analysis of the 8th Amendment.

Ms. Cooley, who is currently awaiting her parole hearing, was fortunate in obtaining this outcome: not only had a reform-minded district attorney recently been elected, her sentencing judge had been replaced by a former criminal and civil rights attorney. Moreover, her life without parole sentence had stemmed from the outdated drug trafficking sentencing scheme and not from the habitual offender statute, which has proven nearly impossible to challenge.

While Ms. Cooley’s resentencing will have no direct impact on other prisoners’ sentences, it is another example of the admittedly slow shift away from inflicting the harshest of punishments on nonviolent drug offenders. While the case sets no legal precedents, DA Carr has stated that he hopes other prosecutors and judges will be exercise similar discretion and compassion. Until they do—or the

legislature takes action—nonviolent drug offenders sentenced to life without parole will continue to live out their days and take their last breaths in Alabama’s unforgiving prisons.