Human Rights at Home Blog

COVID-19 Convinces Michigan to Turn on the Tap

For years, human rights activists in Detroit and elsewhere have argued that water shut-offs should not be the mechanism of choice for collecting on unpaid bills.  Instead, water should be recognized as a human right, not necessarily free to all, but affordable and available to everyone.  A few municipalities, notably Philadelphia, have agreed and have looked for innovative ways to ensure that bills are affordable and that customers have viable options for keeping their water on.  In Detroit, however, mass shut-offs have continued.  At the time that Michigan's COVID-19 stay-home order began, nearly 12,000 households in Detroit had no household water.

Someone in the state government recognized that this created a big problem:  beyond the many personal inconveniences and stresses that shut-offs have always created, folks staying at home with no water cannot readily wash their hands with soap or clean their surfaces, and they have to go out to satisfy their most basic needs.  Last week, the Michigan governor ordered a statewide moratorium on shut-offs and reinstated households whose water had been turned off.

Is this a beginning of recognizing that water shut-offs are the wrong approach at any time, not just in a pandemic?  COVID-19 has many terrible downsides, but it has forced society to recognize the interrelationships between us all.  If almost 12,000 households in a community are denied the human right to water, and are unable to wash their hands regularly, it's not just their problem, but a problem for the whole society. As it turns out, the activists were right:  Detroit could turn the water back on, and they could have done it years ago.  When the COVID-19 crisis is over, Michigan should keep the water flowing, for everyone's sake. 

 

Pandemic journal: Human rights and the COVID19 pandemic

by Jim Nickel, Professor of Law Emeritus, University of Miami School of Law, guest contributor

How should we understand the relations between human rights and the severe measures taken in many countries to combat the COVID19 pandemic?  This question is complicated because on all accounts human rights are plural: there are quite a few of them and they are formulated in lists.  Further, even when we focus on a particular right--such as freedom of movement--the boundaries and priority of the right are far from clear.

The table below identifies some areas where there is tension or worse between human rights and current measures to combat the COVID19 pandemic.  All of the rights mentioned are ones that are found in international human rights treaties and in the best national bills of rights.  No claim is made that this list is comprehensive.

A person’s right to…	Versus current measures in many countries…
Freedom of religion, freedom of assembly, and freedom of political participation	Prohibiting assemblies of more than some small number of people and door-to-door canvassing
Freedom of communication	Prohibiting spreading unfounded and dangerous rumors about the epidemic
The right to a fair and speedy trial	Suspending prosecutions, habeas, and trials
The right to privacy	Public officials following up contacts in ways that severely violate privacy—for example by publishing the names of possibly infected people
Freedom of movement—liberty to travel locally, nationally, and internationally	Mandatory quarantines Prohibitions of travel—lockdowns Prohibitions of travel from heavily infected areas, including returning to one’s home from such an area
The right to vote	Postponement of elections
The right to safe working conditions; the right against forced labor; the right to fair wages	Compulsory, dangerous. and possibly uncompensated work by health workers, morticians, cooks, janitors, and drivers
The right to property	Mandated temporary appropriation of hotels or empty university dorms to use as hospitals or quarantine dormitories; similar appropriations for disposing of the bodies of victims such as vehicles, heavy equipment, refrigerated trucks, and cremation facilities. Denial of access to owners of second homes

Leaders of countries imposing these restrictions as necessary to combat the pandemic—and I don’t doubt that many of them are necessary—haven’t expressed much worry that these measures violate or are in tension with human rights.  And I know of no country in Europe that has notified the European Court of Human Rights that it is suspending or limiting human rights. There are a number of reasons.  The biggest is that these emergency measures are put forward as necessary but temporary suspensions of rights in limited areas.  Another is that these measures are mostly permissible under provisions that international human rights treaties contain. Those familiar with international human rights law know that many of the measures in the right column would be permissible in emergencies because relevant treaties contain explicit emergency exceptions to some rights (as with the right against forced labor), because there are qualifications to several of the fundamental freedoms permitting them to be balanced against public health, and because many treaties explicitly allow for derogation (that is, suspension) of most human rights during national emergencies. [See Nickel, “Two Models of Normative Frameworks for Human Rights during Emergencies” in Evan J. Criddle, ed., Human Rights in Emergencies (Cambridge: Cambridge University Press, 2016): 56-80.] A third reason is that the influence of human rights norms has declined in many countries during the last two decades.

As far as I can tell, media coverage of these issues has mostly focused on the pandemic as an excuse for expanded authoritarianism.  Countries with pre-existing authoritarian tendencies are the immediate focus: China, Hungary, Cambodia, Russia, Azerbaijan, and Israel were mentioned in a recent Wall Street Journal article. A Dutch politician was quoted as saying, “These people never let a good crisis be wasted.”  Also expressed is the concern that even in countries without strong authoritarian tendencies previous levels of liberty and democracy will not be reestablished after the pandemic ends.

Courts tend to be of limited use as protections of human rights during pandemics and other severe emergencies. Courts are often not able to function because of lockdowns and restrictions on travel; judges frequently show great deference to public health officials and doctors; and litigation is usually too slow to deal with a current crisis.  Expedited measures and judicial injunctions may, however, be available in some cases.

Human rights commissions could conceivably act quickly by issuing precautionary orders against excessive restrictions to combat the pandemic.  If the government of Bolivia, for example, were to shut down all political activity in the country, including areas with very few COVID cases, might the InterAmerican Commission issue a precautionary order?  I have not heard of any such activity by human rights commissions.

Not addressed in this blog is whether countries had duties under human rights to prepare adequately for severe emergencies of various types and failed to meet those duties in regard to infectious diseases.

 

Unbelievable

By Co-Editor Prof. Justine Dunlap 

No doubt many of you are practicing social distancing but cuddling up to Netflix. Here’s a recommendation for you: avoid those pandemic movies and watch Unbelievable.   This eight-episode series chronicles the case of a young girl, called Marie, living in foster care, who reports being raped by an intruder. The series is based on a true story reported by ProPublica and The Marshall Project and published in December 2015.  It is compelling.

Back to the story but here’s your spoiler alert: a few details follow.  Marie’s story has holes, inconsistencies. Police officers and others make her repeat what happened repeatedly. Latching onto the inconsistencies, they push and she begins to doubt herself and recants.  She is later prosecuted for filing a false report. While this happens, her rapist moves on and continues raping elsewhere.  Two detectives who catch the cases in other cities believe their victims. They are dogged as well as compassionate.  That’s all I’ll say about the series so I don’t reveal all.

We’ve all heard it: tell the truth, it’s easier to keep your story straight. Turns out, that’s not necessarily true. Trauma affects one’s ability to recall exactly what happened.  Sometimes it is also said: details give a story the ring of truth. But trauma interferes with one’s ability to recall details. The truth may be being told even in an inconsistent story.

So what’s a truth-seeker to do? To paraphrase a former president, believe but verify.  Don’t disbelieve a crime victim just because the crime is sexual assault and the victim is confused. Become educated about the effects of trauma. Do due diligence but don’t gaslight. Oh, and be sure to watch Unbelievable on Netflix. Don’t take my word for it, it was Salma Hayek’s Women’s Day pick.

 

The Earth Gives Us A Chance

The skies over Wuhan have dramatically reduced air pollution.  Maps show a significant reduction in nitrogen dioxide since factories closed and transportation restricted.  NASA maps from January 1 and February 25, 2020 show a 30% drop in NO2, which is created through the use of fossil fuels.  "According to NASA scientists, the reduction in NO₂ pollution was first apparent near Wuhan, but eventually spread across the country." 

“This is the first time I have seen such a dramatic drop-off over such a wide area for a specific event,” said Fei Liu, an air quality researcher at NASA’s Goddard Space Flight Center. Liu recalls seeing a drop in NO₂ over several countries during the economic recession that began in 2008, but the decrease was gradual. Scientists also observed a significant reduction around Beijing during the 2008 Olympics, but the effect was mostly localized around that city, and pollution levels rose again once the Olympics ended.

Italy is experiencing similar environmental improvements. Satellite photographs show a decrease in air pollution.  Industrialized northern Italy, in particular, was plagued with serious pollution since well prior to the Coronavirus explosion.  For decades, cruise ships have long polluted the bay leading to the canals.   And boat traffic in the canals is vastly down.

These environmental improvements may be temporary.  Indications are Venice canals have reduced sharply pollution levels. Now residents report that for the first time in decades they can see fish swimming in the canals.  However, there is no evidence that governments will change their environmental habits or tie any stimulus packages to environmental improvements.   Indeed, some of the biggest polluters, the airlines,  may be recipients of large influxes of federal funds. To date, no government has tied stimulus funds to changeover to alternative energy systems.

The earth is offering us a chance to repair environmental harms.  Is anyone listening?

 

Essential Reading: "Rulers or Rules?"

Working from home isn't all it's cracked up to be, but while we all help stem the COVID-19 tide by staying away from others, here's some essential reading.  Forthcoming very soon in the European Journal of International Law:  Anton Strezhnev; Beth Simmons; and Matthew Kim, "Rulers or Rules? International Law, Elite Cues and Public Opinion."  Here's the abstract:

"One of the mechanisms by which international law can shape domestic politics is through its effects on public opinion. However, a growing number of national leaders have begun to advocate policies that ignore or even deny international law constraints. This article investigates whether international law messages can still shift public opinion even in the face of countervailing elite cues. It reports results from survey experiments conducted in three countries, the United States, Australia and India, which examined attitudes on a highly salient domestic political issue: restrictions on refugee admissions. In each experimental vignette, respondents were asked about their opinion on a proposed or ongoing restrictive refugee policy that was endorsed by the government but also likely contravened international refugee law. Respondents were randomly exposed to messages highlighting the policy’s illegality and/or the elite endorsement. The results show that, on average, the international law messages had a small but significant persuasive effect in reducing support for the restrictive policy – at most 10 percentage points. Surprisingly, there was no evidence that the countervailing elite endorsement was a significant moderator of this effect. However, in the case of the United States and among Republican co-partisans of the President, the elite endorsement independently increased respondents’ beliefs that the restriction was legal under international law while having no effect on support for the policy. The results suggest that cues from domestic elites do not strictly trump those from international sources and that despite cues about national leaders’ policy advocacy, international law can affect the attitudes of some voters even on an issue as heavily politicized as refugee policy."

The draft paper is available for download through the Social Science Research Network here.

UN Call for Submissions on Ending Immigration Detention of Children

The UN Special Rapporteur on the human rights of migrants, Mr. Felipe González Morales, has decided to focus his next thematic report on ending immigration detention of children and seeking adequate reception and care for them.

The Special Rapporteur's report will be submitted to the 75th session of the UN General Assembly. 

While the Report will look at the issue worldwide, this is a topic of great concern to US advocates.  Further, recent reports stress the additional issues that detained immigrant children face because of COVID-19. 

The deadline for submissions, which should be limited to 2500 words, is April 20, 2020.  More information -- including specific prompts and questions that the Special Rapporteur wants to highlight and information regarding how to submit material -- is available here .

Queer Sacrifice

 

In his most recent article"Queer Sacrifice in Masterpiece Cakeshop" (31 Yale J. L.and Feminism 249) co-editor Prof. Jeremiah Ho considers that the legal advancements by members of the LGBTQ community, for example with same-sex marriage, rested upon the litigants’ assimilation into mainstream culture.  Prof. Ho further analyzes cases with rulings adverse to LGBTQ concerns and the role of plaintiffs who do not fit into mainstream heteronormative culture and expectations.

 

 

Abstract

This Article interprets the Supreme Court’s 2018 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as a critical extension of Derrick Bell’s interest convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable—such as those who participated in the marriage equality decisions—than LGBTQ individuals who are less “mainstream” and whose exhibited queerness appear threatening to the heteronormative status quo. When assimilated same-sex couples sought marriage in Obergefell v. Hodges, their respectable personas facilitated the alignment between their interests to marry and the Court’s interest in affirming the primacy of marriage. Masterpiece, however, demonstrates that when the litigants’ sexual identities seem less assimilated and more destabilizing to the status quo, the Court becomes much less inclined to protect them from discrimination and, in turn, reacts by reinforcing its interest to preserve the status quo—one that relies on religious freedoms to fortify heteronormativity. To push this observation further, this Article explores how such failure of interest convergence in Masterpiece extends Derrick Bell’s thesis on involuntary racial sacrifice and fortuity into the LGBTQ context—arguing that essentially Masterpiece is an example of queer sacrifice. Thus, using the appositeness of critical race thinking, this Article regards the reversal in Masterpiece as part of the contours of interest convergence, queer sacrifice, and fortuity in the LGBTQ movement. Such observations ultimately prompt this Article to propose specific liberationist strategies that the movement ought to adopt in forging ahead.

 

#PoorNotGuilty

Editors' Note: This post is contributed by Tamar Ezer, Associate Director of the University of Miami Law School's Human Rights Clinic and her student David Stuzin.

Last September, the  Human Rights Clinic at the University of Miami (UM) School of Law hosted a symposium on challenging petty offenses that criminalize poverty, marginalization, and gender non-conformity, in collaboration with UM Law Review, UM Social Justice Law Review, UM School of Communication, National Law Center on Homelessness & Poverty, and Open Society Foundations’ Human Rights Initiative. The symposium brought in leading legal practitioners, academics, and advocates from United States, Uganda, Sierra Leone, Nigeria, Malawi, Madagascar, Kenya, Jamaica, Israel, India, Hungary, Guyana, Guinea, and Ghana to critically examine the intersection of petty offenses and marginalization through a variety of perspectives. It provided an opportunity to connect local, national, and global conversations on criminal law and social justice and for learning across movements and countries. Speakers discussed a range of topics including the use of litigation; human rights advocacy at the local, national, regional, and international levels; and strategies for creative campaigning and new media engagement.

Moreover, a communications workshop prior to the symposium provided an opportunity for advocates to strengthen communication strategies and creative campaigning to complement legal advocacy. At the workshop, advocates developed a shared hashtag for work in this area: #PoorNotGuilty.

A report providing a synopsis of the symposium, as well as videos from the various sessions are now available. These materials can be reviewed for Florida Bar CLE credits.

Additionally, a special issue of the UM Law Review will capture lessons and reflections from the symposium. The first article on “Litigating to Protect the Rights of Poor and Marginalized Groups in Urban Spaces” is now available.

In These Times - Who Are We? What Is Justice?

By guest editor UMass Law Professor Irene Scharf

An editorial in The Boston Globe in late February lamented the “mid-case deportations” that ICE has been conducting in Massachusetts and presumably elsewhere.  Rather than allow the state’s criminal justice system to “do its job” by conducting trials in cases involving serious charges against immigrants already found deportable, ICE has been swooping in and deporting them. It’s unclear from the article whether the Globe editors were more concerned by the failure to provide “justice” for the crime victims, which they frequently referenced, or by the unfairness of these deportations to the accused immigration detainees.

While I of course deplore the acts these crimes involved, as an immigration lawyer and advocate I am deeply disturbed by ICE’s systematic and ongoing attacks on the Massachusetts judicial system.  The Globe editors referred to their hope that the federal courts will address and contain these actions. However, given what we’ve seen recently, it is unclear whether the federal government, acting through ICE, would even abide by a federal ruling.  To me, that is the most alarming issue behind these ICE moves.

There is already sufficient evidence that our judicial system has become severely compromised, that lack of adherence to the rules of precedent, and even of procedure, threaten to take down this third branch of government that helps to avoid lawlessness.  If thwarting of court rulings, currently on the upswing, becomes the norm, it is a small step to “take the law into our own hands” when we have grievances against one another.

A case out of the Seventh Circuit highlights the creeping lawlessness in our judiciary.  In Baez-Saenz v. Barr (947 F.3d 1033 (7^th Cir. 2020)), the Court chastised the Board of Immigration Appeals (BIA), the administrative appellate court for immigration cases, for flouting its remand instructions.  The case involved a Mexican national who appealed the BIA’s denial of his request for a waiver while he sought a U visa (crime victim protection) from the DHS. The Court remanded the case, but on remand, the BIA defied the Appeals Court.  Following Mr. Baez-Saenz’s second appeal to the Seventh Circuit, Judge Easterbrook wrote:

“We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold (at 1035) them in contempt, with all the consequences that possibility entails. …  Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government. …. We acted under a statutory grant of authority to review the Board’s decisions.  … Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.   … The Attorney General, the Secretary, and the Board are free to maintain …      that our decision is mistaken—… But they are not free to disregard our mandate in the very case making the decision. … The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.

The Attorney General’s brief … asks us to remand so that the Board may “address … whether an immigration judge may adjudicate an application for a nonimmigrant waiver … in removal proceedings.” The request is bizarre. We have already held that immigration judges do possess this power …. We directed the Board to consider whether the power has been transferred by statute, regulation, or reorganization plan to the Secretary of Homeland Security. The Board chose not to address that question, and we are hardly going to remand so that the Board can write another opinion about whether we erred in construing  8 C.F.R. sec. 1003.10(a). That’s water under the bridge. … we held that the regulation is unambiguous. An agency is entitled to reinterpret an ambiguous regulation, …, but cannot rewrite an unambiguous one through the guise of interpretation. Change requires rulemaking.

The only remaining question is what should happen next. After concluding that an administrative decision is flawed, a court of appeals normally must remand to the agency. …. Yet we have already remanded, only to be met by obduracy. The remand rule is designed to afford the agency an opportunity (at 1036) to have its say on an issue,… The Board had that opportunity and disdained it. Another remand would do little beside give the Board a free pass for its effrontery, while delaying the alien’s entitlement to a final decision. … Baez-Sanchez has waited long enough. ...  The petition for review is granted, and the Board’s decision is vacated. This leaves the immigration judge’s decision in force. The Executive Branch must honor that decision, ….” (at 1037) (emphasis supplied)

More recently, a former Hawaii state judge, James Dannenberg, resigned from the Supreme Court bar because of his lost faith in the Court.  In a letter to Chief Justice John Roberts, the Judge explained his decision:

“... You are doing far more – and far worse – than “calling balls and strikes.”  Your are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law …  It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America." 

One question … might this actually be America?

 

Mindful Mondays

Coping in this new environment can be challenging. Maintaining our own mental health is crucial so that we can support our students in their education and their adjustments.  Technology certainly will help immensely, keeping us in touch real time with others can provide emotional support.  FaceTime and other technologies help keep relationships going.

For spiritual support and maintaining calm consider participating in Mindful Mondays which are offered at 3 pm eastern time.  Brought to you by the Mindfulness in Law Society Mindful Mondays are for people in the legal profession.  If you have thirty minutes, you might want to join in a twenty minute practice with 5 minutes for discussion at the beginning an end.  Group meditation is powerful, whether in person or via the web.  Maintaining community while experiencing isolation is a powerful way to protect our physical and emotional health.  

Various practices are offered throughout the week as MILS also partners with the Mindfulness Center at Brown University School of Public Health to offer the weekly Tuesday Pause (15 minutes) and Wednesday Mindfulness Program (45 minutes, including some discussion).  Check it out!  

 

 

Teaching Resources on COVID-19 and Human Rights

With COVID-19 upending our semester plans and creating instability for many students, it's hard to avoid the issue in our classrooms.  But like other emergencies and disasters before it, COVID-19 opens a window onto the deep inequalities and structural deficiencies in our society.  For law profs teaching a human rights course as the COVID-19 pandemic unfolds, here are a few resources that can help ground your  (very likely on-line) discussions of the human rights impacts of this pandemic:

Legal analyses of human rights and COVID-19 responses:

    Amnesty International, https://www.amnesty.org/en/documents/pol30/1967/2020/en/

    EJIL blog, https://www.ejiltalk.org/do-the-containment-measures-taken-by-italy-in-relation-to-covid-19-comply-with-human-rights-law/

Impacts on particular populations:

    Human Rights Watch, re. people in prison, https://www.hrw.org/news/2020/03/12/us-covid-19-threatens-people-behind-bars#

    Business & Human Rights Resource Center, re. precarious workers, https://www.business-humanrights.org/en/covid-19-%E2%80%93-time-for-  governments-brands-and-employers-to-protect-supply-chain-and-precarious-workers-from-hardship-and-infection

Operationalizing Human Rights at the Provincial Level:

    Ontario Human Rights Commission Statement on COVID-19, http://ohrc.on.ca/en/news_centre/ohrc-policy-statement-covid-19-pandemic

Statement from UN Human Rights Experts: 

     COVID-19: States should not abuse emergency measures to suppress human rights – UN experts, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25722&LangID=E

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Use the comment function to let us know if you have other resources to share!

Rule of Law Declines in the United States

The World Justice Project has published this year's Rule of Law Index.  Distressingly, more countries declined than improved in overall rule of law performance for a third year in a row, continuing a negative slide toward weakening rule of law worldwide.  In every region, a majority of countries slipped backward or remained unchanged in their overall rule of law performance since the 2019 Index. 

Topping this year's index were Denmark, Norway, and Finland.  For the first time, the United States fell out of the first 20 countries, instead ranking at #21. 

The index is based on eight factors: constraints on government power, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice.  In rankings based on each individual factor, the United States was ranked No. 13 for open government, No. 19 for absence of corruption and No. 20 for regulatory enforcement. Its lowest individual rank was No. 36 for civil justice. (The breakdown is at page 156 of the report.)

The Index relies on national surveys of more than 130,000 households and 4000 legal practitioners and experts to measure how the rule of law is experienced and perceived worldwide.

Senator Schuman, Please Be Quiet!

Did Senator Chuck Schumer think he was speaking for women when he threatened two Supreme Court Justices?  At a rally organized by the Center for Reproductive Rights and held on the Courthouse steps, Senator Schumer remarked "I want to tell you, Gorsuch, I want to tell you, Kavanaugh.  You have released the whirlwind and you will pay the price! You won't know what hit you if you go forward with these awful decisions."  All while the abortion case of June Medical Services LLC. v. Russo was being argued to the Court.  Did Mr. Schumer think that he represented women's sentiments?  Male righteousness and bravado are exactly what is not needed in the fight to save reproductive rights.

Why are men speaking for women anyway?  If men want to help women, they need to show up without speaking up.  What would help is a million silent men marching behind women supporting their demands to save abortion rights and protesting gender violence.   Let women lead.

 

Is it Against the Rules for a Woman to be President?

With the strongest female contenders for the Democratic Presidential nomination now out of the 2020 race, how much longer can we pretend that the barriers to women's national electoral success would be surmountable if only the right candidate appeared?  A century after women's suffrage was achieved (only through women's activism, mind you), the U.S. lags behind almost all countries in the world in the representation of women in political office.  In terms of legislative representation, only Greece, Latvia, Croatia, and Hungary have lower numbers.  In the U.S., progress continues to come at a snail's pace.  Having seen repeatedly the extra burden that accomplished, qualified, articulate, ethical, and competent women have in gaining recognition and support at the highest electoral levels, who is likely to come forward in 2024 to try to challenge these barriers?

The thing is, we know what works to move the ball:  quotas.  In a 2018 analysis, the Carnegie Endowment concluded that "[i]n Europe, the single most effective tool to increase the number of women in politics has . . . been the introduction of electoral targets and quotas."  And it's not just Europe: half of the world’s countries have implemented some type of electoral quota for their parliament.  

Americans often start from the premise that quotas are off the table -- they are simply too controversial in the U.S.  But it's worth noting, as the Carnegie Report observes, that "campaigns for quotas have often been spearheaded by women’s groups within political parties, typically after other means of improving representation—such as trainings and mentorship programs—failed to produce lasting change. In both Austria and Sweden, for instance, women threatened to create separate women’s parties unless party leaders took action."

The media's analysis of what went wrong for Kamala Harris, Amy Klobuchar, and Elizabeth Warren is already well underway.  All three have identified sexism as a factor in their candidacies -- a factor that will, unfortunately, be an issue faced by every woman candidate for high office unless and until we change the rules.  With the 2020 U.S. presidential race apparently down to three 70+ white men, what better time for a women's movement for political gender quotas?      

Civil Rights Commission Briefing on Maternal Health

The United States' record on maternal health is human rights failure, with race playing a tragic role in rising maternal death rates. 

The U.S. Commission on Civil Rights will hold a briefing on March 20, 2020, on maternal health disparities in the United States. The Commission’s investigation seeks to examine the federal role in preventing negative pregnancy-related health outcomes and pregnancy-related deaths of women in the U.S. The Commission will analyze current data regarding pregnancy-related and pregnancy-associated deaths, including data collected by the Centers for Disease Control and Prevention (CDC), the National Institute of Minority Health and Health Disparities, and the Department of Health and
Human Services’ (HHS) State Partnership Initiative to Address Health Disparities. The Commission’s investigation and subsequent report will aim to inform work being carried out in the federal government to address racial disparities in maternal health outcomes. More information about the  briefing, which is open to the public, is available here.

Making Children's Human Rights "Widely Known"

Jonathan Todres, Distinguished Professor of Georgia State University College of Law, has published a new article on human rights education and children's rights, analyzing Article 42 of the Children's Rights Convention.  The article, which will appear in a forthcoming issue of the Minnesota Journal on International Law, can be downloaded from SSRN here.  While the United States has not ratified the CRC, the article is an important reminder of the importance of human rights education to the realization of human rights.  Here is the abstract:

"Making Children's Rights 'Widely Known'"

Abstract

Since the advent of the U.N. Convention on the Rights of the Child (CRC), the international community has witnessed significant progress on children’s rights in both law and practice. Yet as we reach the 30th anniversary of the CRC, children’s rights violations remain widespread. These abuses reinforce the fact that children’s rights — and human rights more generally — have yet to be fully embraced in all communities. A precursor to children’s rights being fully embraced and respected is to have them widely known and understood. This article asserts that a significant factor in the failure to achieve widespread acceptance of children’s rights is the insufficient attention given to implementation of Article 42 of the CRC and its obligation to make children’s rights “widely known.” Article 42 of the CRC is simultaneously one of the most important and most overlooked provisions of the treaty. Article 42 requires states to ensure that “the principles and provisions of the [CRC] are widely known, by appropriate and active means, to adults and children alike.” Despite the threshold nature of Article 42 — without knowledge that they have rights, individuals cannot seek to realize them — there has been surprisingly little meaningful work done to ensure that Article 42 is fully implemented.

This article seeks to invigorate a discourse on Article 42 of the CRC, its meaning, and best practices for securing its full implementation. It includes an analysis of the U.N. Committee on the Rights of the Child’s jurisprudence on Article 42. The article also discusses how Article 42’s mandate and the human rights education mandate found in CRC Article 29 and other treaties should be understood in relation to each other. Finally, the article maps the relevant stakeholders and their roles in the implementation of Article 42, with a view to building sustained support for law, policies, and programs that advance children’s rights and well-being.

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Legal Challenge to Unalienable Rights Commission

On Friday, March 6, a coalition of human rights organizations including the RFK Center for Justice and Human Rights and the Global Justice Center filed suit against Secretary Michael Pompeo and the U.S. State Department for violations of the Federal Advisory Committee Act (FACA) in the formation and conduct of the State Department's Commission on Unalienable Rights (CUR).

Enacted in 1972, the FACA is intended to ensure that advice by the various federal advisory committees is objective and accessible to the public.   The complaint, pending in federal district court in the Southern District of New York, alleges that the CUR does not reflect ideological balance and that its proceedings have not been transparent.  For example, CUR has been slow to publish summary minutes of its meetings and has not made transcripts or agenda materials available at all; a response to a FOIA request filed by American Oversight pointed to the CUR's website as the source of information about its activities.  The relief sought by the suit is "an order setting aside the Commission’s charter, enjoining it from continuing its work, requiring it to make all Commission records available to the public, and barring Defendants from accepting advice or recommendations from the Commission."

For more commentary on the CUR, see our blog entries here , by Professor Rachel Lopez here, and by Deanna Hurwitz here.  Links to the Columbia Human Rights Law Review's series on CUR are available here.

 

June Medical Argument Focuses on Application of the Undue Burden Standard

By Cynthia Soohoo

Despite calls from conservative lawmakers to overturn Roe v. Wade, last week's Supreme Court argument in June Medical Services v. Russo focused narrowly on how the Court should apply its 2016 holding in Whole Woman’s Health v. Hellerstedt rather than on whether the Court should overrule or overhaul the undue burden standard.  And despite Louisiana’s last-minute assertion that the physician plaintiffs lacked standing to bring the case, only Justice Alito seemed interested in taking on the third-party standing. All eyes were on Chief Justice Roberts and Justices Gorsuch and Kavanaugh, the two newest members of the Court. Gorsuch did not ask a single question. Both Roberts and Kavanaugh focused on how the Court should apply Whole Woman’s Health to future cases.

A few minutes into the argument, Justice Alito asked Julie Rikelman, counsel for June Medical, several questions on third-party standing. Louisiana’s Solicitor General Elizabeth Murrill also led off with third party standing, but the other justices did not substantively engage with the issue. Alito vehemently disagreed with Rikelman’s position that Louisiana waived the standing argument, but through questioning Justice Ginsburg underscored that if the Court were to consider standing at this point it would prejudice plaintiffs who might have added a non-doctor plaintiff if Louisiana had raised the issue sooner. Justice Breyer also expressed some frustration that the Court was being asked to consider standing, noting there have been at least 8 cases in which the Court has recognized third party standing going back over 40 years.  He questioned when it was appropriate to reconsider established precedent, asking are we to “go back to Marbury v. Madison.”

The bulk of the argument focused on how Whole Woman’s Health’s holding (that a Texas law requiring doctors providing abortions to have admitting privileges at a hospital within 30 miles of the procedure constituted an undue burden on abortion) applied to other admitting privilege cases. In June Medical, the 5th Circuit reversed a district court decision holding that a virtually identical law imposed an undue burden. Justice Roberts asked counsel whether courts reviewing admitting privileges still needed to conduct a state by state factual inquiry into whether the laws constitute an undue burden after Whole Woman’s Health. 

Rikelman maintained that when courts review an admitting privilege law, they should apply Whole Woman’s Health’s finding that such laws do not provide any health benefit. Then, turning to the other part of the undue burden test, courts should consider the burdens placed on abortion access on a case by case basis.  She emphasized that in June Medical, the district court found that the law imposed significant burdens. Justice Kavanaugh seemed interested in how the benefits and the burdens should be weighed, posing a hypothetical about whether an admitting privilege law would be unconstitutional even if it did not impose any burdens on abortion provision. 

Rikelman expressed some skepticism that an admitting privilege requirement would not impose any burden on abortion provision and noted that such a law was not before the Court. She emphasized that admitting privilege laws are always likely to pose an undue burden because they create barriers without any benefits. 

In response to similar questions, Murrill argued that Whole Woman’s Health's reasoning would not be controlling on the benefit side of the undue burden test where the state can show a greater benefit based on its regulatory structure.

The rest of the argument focused on whether Louisiana could establish that its law imposed greater benefits or lesser burdens than the Texas law. Louisiana’s main argument on the benefit side was that the admitting privilege law serves a credentialing function. During this line of questioning, like the 2016 Whole Woman’s Health argument, the female justices asked several questions reflecting a familiarity with abortion and reproductive health procedures that made it difficult for Murrill to make unsupported assertions about a health benefit. Ginsburg and Justice Sotomayor repeatedly noted that the law’s 30-mile requirement made no sense if Louisiana’s purpose was to improve care for the treatment of complications from medical abortions.  Ginsburg emphasized the low complication rate for abortion procedures and Louisiana’s failure to impose a similar requirement on doctors who perform DNCs to manage miscarriages. Justice Kagan stated that in Whole Woman’s Health, the Court held that an admitting privilege requirement could not serve a credentialing function if privileges are denied for reasons other than quality of care. She, Ginsburg and Sotomayor noted that admitting privileges are often denied based on factors, such as the number of admissions a doctor makes to a hospital, which reflect hospitals’ commercial interests rather than doctors’ competency.

On the burden side, Murrill and Principal Deputy Solicitor General Jeffrey Wall argued that the admitting privilege law did not cause the burden on abortion care because the doctors could have tried harder to get admitting privileges. Wall asserted that it was not in the plaintiff doctors’ interest to try hard to get privileges, and Murrill went further, suggesting that the doctors “sabotaged” their own applications. There was substantial back and forth between counsel and justices about what individual “John Doe” doctors could have done. Rikelman emphasized that many of the hospitals bylaws had provisions that disqualified the doctors because of insufficient hospital admissions, the doctors had applied to the hospitals where they had the best chance of being admitted, and the district court found that all but one of the doctors were unable to get privileges for reasons that had nothing to do with competency. Despite the disqualifying provisions and the district court’s findings, Wall took the position that the doctors should have applied to the full range of hospitals.

While Gorsuch’s silence makes it difficult to assess his views, questioning from the other justices (besides Alito) suggested that a majority of justices wished to focus on the very narrow question of how lower courts should apply Whole Woman’s Health to admitting privilege laws rather than to revisit the Court's abortion jurisprudence. Given the consistent onslaught of new and different types of laws restricting abortion each year, such a narrow focus may be unsatisfying for those looking to the Court for more guidance, but it may be the most the Court is willing to do at this point.

(reprinted courtesy of Reproductive Rights Law Profs Blog)

US Treaty Reporting

The United States' report on its compliance with the Convention on the Elimination of All Forms of Discrimination, a treaty ratified by the US, is now several years overdue.  It was expected to be submitted in November 2017, but has never been submitted.  

However, the U.S. government appears to be moving ahead with its report under the International Covenant on Civil and Political Rights.  The UN website indicates that the U.S. government's report is expected to be submitted on April 2, 2020, after a period of delay.    

Perhaps the impending Universal Periodic Review of the U.S., scheduled for May 2020, has spurred the government to get back on track with its reporting obligations.  We can expect that the UPR will elicit comments from other nations on the U.S. government's failure to submit its CERD report, as well as other commentary on human rights concerns.  It's not too late for the US government to pre-empt some of these criticisms by submitting its long-overdue CERD report. 

Twenty-five Years After the Beijing Conference: Equality Now Reports on Governments' "Words and Deeds"

Commemorating the 25th anniversary of the UN Conference on Women in 1995 and the Beijing Platform for Action, Equality Now has published its fifth edition of Words and Deeds, a survey of discriminatory laws that persist around the world.  Three U.S. laws are featured:  the executive order barring transgender troops; a Mississippi law permitting child marriage; and the discriminatory citizenship law upheld by the U.S. Supreme Court in Nguyen v. INS.

Equality Now has some good news, too.  It reports that over half of the discriminatory laws featured in its prior Words and Deeds reports have been partially or completely repealed.  But some basic protections remain elusive.  In particular, reports Equality Now, "[w]hile 77% of States
guarantee equality on the basis of sex in their constitutions, 23%, including the United States, do not have sex equality as a constitutional guarantee."

With each national law it identifies, Equality Now provides information about how to take action to address the discriminatory provision.  For the United States, the report notes, the proposed Equal Rights Amendment to the US Constitution would go a long way toward eliminating these explicitly discriminatory laws more than two decades after the attendees at the UN's Beijing conference pledged to "bring Beijing home."