Op-Ed | Courting the U.S. Environment

This essay originally appeared in The Globalist and was adapted from a speech Bill Humphrey delivered to a Citizens Climate Lobby chapter meeting in Brookline MA.

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Here is an interesting twist in the annals of U.S. democracy: The country’s federal and state courts are likely to set as much, if not more, of U.S. climate policies as the president, Congress, governors or state legislators.

Broadly speaking, that is because the courts, not the other branches, are the ones who make the decisions interpreting and applying state laws and regulations.

But it is also a direct reflection that the environment remains more of a politically contentious and divisive issue in the Unites States than in any other advanced economy.

All of this became glaringly clear once again in the recent, unprecedented U.S. Supreme Court order, issued shortly before Justice Scalia’s death.

The temporary decision in West Virginia v. EPA blocked implementation of President Obama’s regulations to restrict the emissions of coal-fired power plants.

The courts, now or never

The role of courts on climate policy extends well beyond coal, as the growing number of environmental and climate lawsuits winding their way through U.S. and state courts in recent years makes plain.

This includes a recent suit filed in Massachusetts alleging that the state has not met its legally mandated emissions targets.

Given this lay of the land, it is more important than ever in the United States to pay attention to judicial nominations – whether to the U.S. Supreme Court or to state supreme courts in places that do not elect judges – and assess the candidates from the perspective of their views (and hence potential impact) on global climate change. Read more

July 15, 2015 – Arsenal For Democracy 134

Posted by Bill on behalf of the team.

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Topics: Supreme Court rulings on marriage equality and Obamacare, order on Texas abortion clinics law; Puerto Rico and Greece debt crises. People: Bill, Kelley, and Nate. Produced: July 13th, 2015.

Discussion Points:

– U.S. Supreme Court: What are the implications of major rulings and orders on marriage equality, Obamacare, and reproductive freedom?
– Debt Crises: What’s next for Puerto Rico and Greece?

Episode 134 (47 min):
AFD 134

Related Links

AFD by Kelley: “The Supreme Court Order You May Have Missed”
AFD by Bill: “Marriage Equality Day”
AFD by Bill: “A Sinking Feeling in Puerto Rico”
AFD Posts about Greece

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And don’t forget to check out The Digitized Ramblings of an 8-Bit Animal, the video blog of our announcer, Justin.

The Supreme Court order you may have missed

The Supreme Court’s rulings two weeks ago on the Affordable Care Act and marriage equality have had a profound and immediate effect on Americans. But so has the Court’s less-discussed order to delay the implementation of a Texas law that would have effectively shut down all but ten Texas abortion clinics, leaving nearly one million women at least 150 miles away from their closest abortion clinic.

Map of 60-mile radius access limits around Texas abortion clinics, under the suspended law. (Credit: @MetricMaps / Wikimedia)

Map of 60-mile radius access limits around remaining Texas abortion clinics, under the suspended law, versus female population density. (Credit: @MetricMaps / Wikimedia)

The Texas law in question initially grabbed the nation’s attention thanks to a pair of pink sneakers and State Senator Wendy Davis, whose passionate filibuster lasted long enough to avoid the passage of the bill…for the day. Despite Senator Davis’s efforts, the bill passed in July 2013, as part of a second special session, by a margin of 19-11.

The first part of the bill took effect 90 days after it’s passage; it prohibited abortions after 20 weeks and required all doctors performing abortions to have admitting privileges at a local hospital.  The Supreme Court’s order delays implementation of the second part of the bill, which requires all abortion clinics to meet the standards of an “ambulatory surgical center” – a set of stringent regulations on staffing, equipment, and the building itself.

Fund Texas Choice notes that 14 of Texas 36 abortion clinics closed due to the provision requiring doctors to have admitting privileges at a local hospital and only 10 clinics currently meet the standard of an ambulatory surgical center.

Some Texas lawmakers insist that these changes are designed to protect women’s health, while opponents have deemed it a thinly veiled effort to restrict a woman’s right to choose in the Lone Star State.

Abortion is an extremely safe medical procedure.  A recent study in Obstetrics and Gynecology notes that women are 14 times more likely to die during or after childbirth than from abortion.  In fact, in 2010, only 1 in 625 women who received in abortion at Planned Parenthood required an emergency room visit or blood transfusion.  Still, Texas is one of 24 states that the Guttmacher Institute reports has regulations that go beyond what is medically necessary for patient safety.

The Supreme Court order is only temporary, however, and will expire if the Court decides not to hear the case during their 2015 season.

It is still unclear if the Court will hear this case, but if they do, a woman’s right to choose is sure to be in the crosshairs of the 2016 presidential election, and rightfully so: the problem is a lot bigger than Texas, as the other 23 states with similarly restrictive laws proves.

Despite the fact that half of Americans identified as pro-choice in a May 2015 Gallup Poll, states across the country continue to enact abortion restrictions in record numbers.  During the years of 2011-2014, states passed 231 restrictions on abortions, limiting access to safe abortions from sea to shining sea.  To put that in perspective, 189 restrictions had been passed in the ten years previous.

The increasingly stringent regulations on abortion access make it clear that women need a champion to protect the rights afforded to them by the 1973 Roe v. Wade ruling.  That champion may come from the Supreme Court, or we may need to change the tide of state politicians.

This Texas law and the drastic effect it has on the number of abortion clinics in the state calls into focus the severity of medically unnecessary restrictions on abortion and the reality that they effectively limit access to safe abortions for many American women.

Marriage Equality Day

It’s a little hard to put into words my thoughts and feelings about the fantastic Supreme Court ruling today on equal marriage rights for same-sex couples. On the one hand, I worked (eventually full-time) on the issue for over two years in Delaware — something I’m very proud of — but on the other hand, I’ve been out of that line of work for almost as long (and so the big victory I was most involved in happened a couple years ago rather than today). I also definitely remain very aware how many other LGBTQ human rights are yet to be secured in many states — particularly on employment discrimination and life or death matters.

Still, the achievement today is not nothing. Far from it. It’s not just abstract that some happy young couples — congratulations! — can finally get married. There are a lot of older families that will be more legally and financially secure than they ever have been. That’s a really big deal. So this ruling is very important to celebrate today, even if there is a long way still to go in other areas. It’s a little disappointing to see a genuine achievement played down in some circles. It’s not a capstone, but it’s still significant.

We may also be in for a bumpy ride on implementation. Some folks and officials are reacting with almost as much resistance as they did to the split Roe v. Wade abortion legalization ruling in 1973 or to the unanimous Brown v. Board of Education ruling of 1954. I’m cautiously optimistic that that initial reaction will subside in the coming days, weeks, months, or maybe a year. But many social conservatives know from those two “controversial” rulings that if they resist hard enough, the Supreme Court has little way of compelling compliance and the effective impact is sharply reduced. That’s very troubling. I hope it doesn’t pan out that way.

For now, however, I’m celebrating and remembering some of the highlights of the small part I played in this some time ago. It was the right thing to do, even when it wasn’t wildly popular, and I’m glad things moved quickly enough that I could see this ultimate outcome not very long after. Sometimes governmental processes move too slowly to see citizen actions having an impact. It’s cool to see it happen this time.

Justice Kennedy asks us to rethink U.S. prisons broadly

U.S. Supreme Court Justice Kennedy not only wants the Court to hear a case as soon as possible on the constitutionality of solitary confinement, in the aftermath of the suicide of Kalief Browder, but he wants lawyers to start thinking more seriously about the prison system in general when they’re putting people there:

But Kennedy’s concurrence also seemed to be directed toward the American legal community, whose disengagement from prison issues he has previously lamented. “In law school, I never heard about corrections,” he told a congressional hearing on March 23, two weeks after the Davis oral arguments. “Lawyers are fascinated with the guilt/innocence adjudication process. Once [it] is over, we have no interest in corrections. Doctors and psychiatrists know more about the corrections system than we do.”

Although no one realized it at the time, his brief soliloquy on the crisis of “total incarceration” in March was a preview of today’s concurrence. “Too often, discussion in the legal academy and among practitioners concentrates simply on the adjudication of guilt or innocence,” Kennedy wrote. “Too easily ignored is the question is the question of what comes next. Prisoners are shut away—out of sight, out of mind.” Consideration of these issues, he stated, “is needed.”

 
I’ve been thinking about this (the theme Kennedy highlights in the quotes above) a lot while watching legal dramas. The lawyers on both sides plea-bargain in abstractions with no real sense of what they might be condemning the accused to, even for a few years. I don’t think it’s much different in the real world. Even a year or two in general population, let alone solitary confinement, is a pretty strong punishment, and I suspect many lawyers don’t think too hard about that.

Which is not to say that all prison sentences (or even most) are somehow inherently unjust, but rather that we need serious prison reform to ensure that prisons are actually constructively “correcting” and proportionally punishing criminal actions, without being excessive or abusive. We’ve got a hell of a long road ahead of us considering our society still thinks “prison rape” is a hilarious subject, not a serious problem, or that abuses by guards are irrelevant even when someone is serving time for a very minor offense because prison should be as harsh as possible.

We have a very destructive system that is killing people and destroying lives permanently, even for minor or non-violent crimes, without any consideration toward rehabilitation or even true justice.

US Supreme Court won’t stop plan to cut down Ohio early voting

Gregg Levine of Al Jazeera America reported on the abrupt end of Ohio’s same-day registration/early voting combo week and rollback of Sunday voting, after an emergency stay (of a lower ruling invalidating the reductions) by the Supreme Court:

[Tuesday] was to be the first day of Ohio’s “Golden Week,” a six-day overlap between the end of voter registration and the beginning of early voting for the November 4 General Election. But on Monday, the U.S. Supreme Court sided with Ohio’s Republican Secretary of State and allowed to go forward a plan that significantly reduced the number of days voters could cast early ballots.

 
So what was being reduced and who was being affected most by the changes?

The [2005] provisions that allowed voters to register and vote the same day (the ballot counted only if the registration checked out) proved popular in African-American communities, as did weekend voting […] Ohio’s GOP-dominated government moved to cut the number of early voting days to 28, eliminating the Golden Week, some Sunday voting, and limiting operating times of polling stations to reduce availability outside traditional working hours.

 
This goes right back to the points Nate and I discussed on Episode 101 of Arsenal For Democracy, earlier this week, about the Republican efforts to suppress early voting options that benefited minorities.

And what happened when a lower court tried to block the reduction of early voting options on the grounds that it was a violation of the Voting Rights Act because of the disparate impact on minority and low-income voters?

Ohio Secretary of State Jon Husted rushed an appeal to the Supreme Court…

While his appeal is pending, he received an emergency stay, which allows the new, restrictive rules to go into effect, thereby reducing early voting options significantly in this year’s statewide elections in Ohio. Which is interesting because:

Husted is, himself, locked in a tight election battle with Democrat Nina Turner, an Ohio state senator.

 
Funny how that works. Looks like the Supreme Court just interfered in a close partisan election. Woops.

Levine also warns that this emergency stay may signal an impending second round of gutting the Voting Rights Act, possibly with the effective elimination of Section 2, which relates to changes in voting practice that have discriminatory effects, whether intended or not. The Supreme Court has never issued a written opinion on Section 2 since its amendment in 1982. Last year, of course, the court canceled the geographic formula in Section 4 that required special scrutiny and explicit Federal approval for changes in certain jurisdictions with a history of egregious discrimination.