CULR Volume I Issue I

CHAPMAN UNDERGRADUATE LAW REVIEW

VOLUME I, ISSUE I

Editor-in-Chief Olivia Wagner

Editorial Board Cynthia Le Erisa Rhaine Castillo Owen Lucas Agbayani Sabrina Ghashehbaba Sarah Band Westley Hall Whitney Gassmann Mennes

Executive Board Alexis Reekie, President Marina Logue, Vice President Samuel Andrus, Secretary Christian Grevin, Director of Recruitment Kassandra Sopko, Director of Public Relations Daisy Davila, Diversity, Equity, and Inclusion Chair Nicole Drew, Director of Finance Eleni Fernald, Constitutional Review Chair

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Letter From the Editor

Dear Reader, It is my great pleasure to present the inaugural issue of the Chapman Undergraduate Law Review (CULR). On behalf of our Executive and Editorial Boards, we are grateful to be celebrating this tremendous milestone for our journal. As the legal structures and norms that uphold our society continue to be challenged, our goal in creating this publication is to provide undergraduate students at Chapman University and beyond a space to engage in diligent and productive discourse surrounding the most pressing matters of our time. It is my hope that the topics presented in the forthcoming articles will serve as a forum for intellectual debate and enrich the academic culture of our institution.

In the following pages, you will read the legal perspectives of our pioneering group of authors that represent undergraduate institutions from all parts of the country. This issue consists of eight articles that encapsulate a wide breadth of topics from a multiplicity of disciplines and fields of study. We encourage you to delve deeper into each of the topics our writers present.

Lastly, I cannot express enough thanks to our writers and Editorial Board that have allowed us to bring this vision to fruition. This publication is the product of countless hours of hard work and dedication that serve as a testament to the exceptional standards that these individuals hold themselves to. As I now sign off from the CULR and prepare to leave Chapman University, I am more eager than ever to see what this publication will continue to produce in the years to come.

As rigorous discourse is the prerequisite to change, I urge you to engage thoughtfully with the matters presented here in hope that the ideas cultivated may serve as the foundation for this kind of evolution.

Sincerely, Olivia Wagner Editor-in-Chief 2021-22

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CHAPMAN UNDERGRADUATE LAW REVIEW

VOLUME I, ISSUE I

CONTENTS RESTORATIVE JUSTICE IN THE MODERN WORLD: HOW AN ABORIGINAL PERSPECTIVE CAN AMELIORATE THE U.S. CRIMINAL JUSTICE SYSTEM

Kamryn Zachek

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NEUROLAW: FAD OR FUTURE?

Emma Chen

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COVID-19 TRANSMISSION IN THE U.S. CRIMINAL JUSTICE SYSTEM

Angelina Cayabyab

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THE FUTURE OF THE VACCINE MANDATE: AN ANALYSIS OF THE HISTORY AND CASE LAW RELEVANT TO OSHA’S EMERGENCY TEMPORARY STANDARD

Wesley Carter

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ABORTION REGULATION: EXPLORING THE RELIABILITY OF FETAL VIABILITY IN ABORTION LEGISLATION

Megha Nagaram

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A COMPARATIVE ANALYSIS OF ABORTION LAW IN POLAND AND THE UNITED STATES

Roksana Gorgolewski

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IN GOD WE TRUST: THE AMERICAN PRIORITIZATION OF THE CHURCH THROUGH THE STATE

Taylor Blinebury

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THE THREAT OF PARTISAN LAWFARE

Jonathan H. Wright

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Restorative Justice in the Modern World: How an Aboriginal Perspective Can Ameliorate the U.S. Criminal Justice System Kamryn Zachek Edited by Erisa Castillo

The dominant criminal justice theory in the U.S. is based on punitive action but the exponential growth in enmity between ethnic communities and egregious incarceration rates begs the following question: is it appropriate in the modern era for retribution to be the only acceptable form of justice? A philosophy based in aboriginal law is gaining popularity in U.S. legal systems, its approach to criminal justice being adversarial to the system currently in place in the U.S. This, in turn, has prompted debates as to whether it is an adequate response to crime. Restorative justice sees the goal of criminal proceedings through a rehabilitative lens with its broader objective being the construction of strong, unified communities. As restorative justice becomes a more common term in the courtroom (most frequently in cases dealing with historic racial and ethnic injustices), the process and its programs face scrutiny as the legacy of retributive justice in the U.S. echoes in the minds of the public as being the only true “American way”. This attitude was one of the more common reactions of the public garnered in the case of the destruction of the Obelisk in Santa Fe, New Mexico (2020) when District Court Attorney Mary Carmack-Altwies referred the defendants to participate in a restorative justice process. The eye-for-an-eye philosophy almost exclusively exhibited in U.S. criminal justice proceedings is not always an appropriate response to conflict, especially in cases rooted in historical injustice in which no relational progress is made, both parties continue to feel wronged, and everyone is missing an eye. A restorative perspective proposes a solution to this problem and should be recognized for its ability to compensate for the shortcomings of retributive justice in the U.S.

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I.

INTRODUCTION

The idea that the only acceptable response to criminal violation is a punishment that brings about equal pain to the offender is a perspective that is prevalent in criminal justice proceedings in Western culture.1 This retaliatory reaction to criminal offense is not the only path to achieving justice, rather it represents one end of an interpretive scale on which the concept of justice lies.

Justice and retribution are often used synonymously in the Western world, which has made it so any response to criminal violations that do not center on punishment are not considered an adequate response to crime. This perspective consequently limits the ability of the criminal reform systems to achieve rehabilitation of offenders or affected communities.

Restorative practices are rooted deeply in aboriginal law, the tribe most frequently associated with this theory being the Navajo of North America.2 The goals of these practices reflect the tribe’s spiritual outlook on conflict that is a major reason for its continual rejection by Western culture. The overarching goal of restorative justice practices is the healing of victims, offenders, and communities through the exchange of perspectives and a deeper look into what caused the offense to take place.3 How this is achieved is unique to each situation and requires intimate analysis of all variables and a detailed plan of approach to ensure progress is achieved.4 The scope of this ideology and its vessels is broad, and resolution is typically less immediate than seen with retributive action. For many, this can dilute the appeal of the approach to those who are comfortable with the physical consequentialism of the current criminal reform system.

The restorative theory is not meant to replace retributive action, but rather complement it so that a more fruitful and permanent rehabilitation is achieved.5 The idea that an eye-for-an-eye approach to criminal justice is the only way to approach conflict is a mindset cemented over generations of political campaigns in the U.S. centered on being tough on crime. This perspective is not an accurate reflection of the younger generation’s interest in resolution of generational wrongdoings and the strengthening of their respective communities.6 The modern era of political activism has shined a spotlight on the deteriorating relationships between ethnic communities, an issue encapsulated perfectly within the case of the Santa Fe Obelisk. As the systematic issues of a retributive action centric criminal justice system become harder to ignore, the complete rejection of restorative justice due to its divergence from Western systems is no longer an acceptable justification.

II.

THE ORIGIN OF RESTORATIVE JUSTICE

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See, e.g., (AUTHOR), CRITICAL ISSUES IN RESTORATIVE JUSTICE 23-25 (H. Zehr & B. Toews ed., Lynne Rienner) (2010) 2 See 2. DENNIS SULLIVAN & LARRY TIFFT, RESTORATIVE JUSTICE : HEALING THE FOUNDATIONS OF OUR EVERYDAY LIVES 17-20 (Willow Tree Press 2nd) (2005) 3 See DENNIS SULLIVAN & LARRY TIFFT, RESTORATIVE JUSTICE : HEALING THE FOUNDATIONS OF OUR EVERYDAY LIVES 6 (Willow Tree Press 2nd) (2005) 4 See D Roche, Accountability in Restorative Justice, 188-202 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 5 See, e.g., HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE : A BESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 19 (Good Books Revised and updated) (2014) 6 See 2. DENNIS SULLIVAN & LARRY TIFFT, RESTORATIVE JUSTICE : HEALING THE FOUNDATIONS OF OUR EVERYDAY LIVES 17-20 (Willow Tree Press 2nd) (2005)

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The use of restorative justice can be traced back to various indigenous tribes across the world, but the tribe attributed with the birth of these processes is Navajo people of North America.7 Navajo culture is centered on the commensurate value of all life, a belief that is translated into all factions of their being. This abbreviated ideology is one birthed from their spirituality and shaped by their historical interactions with Western European culture.8 The Western criminal justice process is reliant on a powerful hierarchical structure reflective of the messages conveyed through retributive practices. At every stage in the Western process, the single most important influence on the direction in which the case progresses is who is in power. In a previous section it was discussed how in the modern criminal justice structure of the Western world, those most directly influenced by the conflict forfeit much of their influence to the system which is the source of many objections to the retributive approach. Navajo beliefs reject the foundations of the modern system by taking the vertical structure of a hierarchy and rearranging it into a linear model where the power and influence over the direction of the situation is distributed amongst all those involved equally.9 The conference model has been adapted from “circles”, a process the Navajo developed to bring all parties involved onto equal footing, directly adversarial to the physical structure of a trial by jury.10 Circles often involved a physical item which signified who could speak that would be passed around the circle so everyone would have equal opportunity to contribute to the conversation.11 This approach to justice was meant to convey that no matter the role a person played in the conflict, their personal experience was not more or less valuable than any other.

Modern courts were introduced to the Navajo Nation in 1892 forming the Navajo Court of Indian Offenses which blended customary Navajo traditions with modern court procedures conducted by a judge.12 This justice system would undergo revision in 1959 and become the Courts of the Navajo Nation.13 This court system would dismiss much of the Navajo traditions which were preserved within the Navajo Court of Indian Offenses and replace it with a system that mirrored standard state court proceedings.14 After the establishment of the Court of Indian Offenses, the germination of what is now identified as a restorative approach to criminal justice would lose traction and would not be seen in the modern world for nearly 40 years.15 The legitimacy of restorative processes as a response to crime has been questioned on the basis that it lacks the structure perceived as necessary to be an effective criminal justice system.16 A major reason restorative justice took so long to become part of the modern criminal justice vocabulary was its adaptive structure, the transition from theoretical

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See Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. REV. 175 (1994).

See Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. REV. 177 (1994).

9 See Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. REV. 180 (1994).

10 Cf. BONNIE PRICE LOFTON, CRITICAL ISSUES IN RESTORATIVE JUSTICE 377 (H. Zehr & B. Toews ed., Lynne Rienner) (2010) 11 See D Roche, Accountability in Restorative Justice, 66 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 12 Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. REV. 10 (1994).

13 Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. REV. 186 (1994).

14 S D Roche, Accountability in Restorative Justice, 66 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 15 See HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE : A BESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 18 (Good Books Revised and updated) (2014) 16 See Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. REV. 180 (1994). The “lack of structure and proper punishment” was one of the centric arguments for re-structuring the Court of Indian Offenses and the dismantling of Native court systems across North America in the 1940’s-1950’s.

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to material was a jump many national governments saw as impractical.17 The first time we see restorative justice in a modern context is New Zealand in the 1989 Children, Young Persons, and Their Families Act where the family conference model is first introduced.18 Similarly to the Court of Indian Offenses, the Māori of New Zealand operated under a government system that was less formal than national systems and reflected their peaceful way of life.19 Their tribal government was accredited for influencing the establishment of the restorative aspects of the aforementioned Act, giving it a name in the modern criminal justice system for the first time.20 The full name of the program established by this act is Family Group Conferencing, a conference model conceived to combat international data that supported that many state systems led to greater violent crime rates amongst youth.21 After the implementation of this program, the national government of New Zealand saw a significant reduction in youth crime rates and positive trends in familial relations.22After the success of the program, New Zealand broadened the scope of its restorative processes, a decision that was supported by the public.23 While New Zealand is accredited as the birthplace of modern restorative justice, its roots belong to the native tribes who rejected the Western criminal justice structure in the name of a more peaceful existence.

III.

FALLACIES OF THE RETRIBUTIVE APPROACH

The birth of serious reflection on the integration of restorative practices in modern criminal justice proceedings can be largely credited to the issues associated with the retributive approach.

One of the most discernible being the egregious incarceration rates in the United States. According to the 2020 National Prisoner Statistics report the U.S. leads the world in incarcerated individuals per capita at approximately 2.3 million or 639 per 100,000.24 The consequences of overcrowding alone include shortage of infrastructure and staffing which mutates into health and safety concerns, 17

See LODE WALGRAVE, CRITICAL ISSUES IN RESTORATIVE JUSTICE 191 (H. Zehr & B. Toews ed., Lynne Rienner) (2010) 18 Gabrielle M MAXWELL ET AL., RESTORATIVE JUSTICE AND PRACTICES IN NEW ZEALAND: TOWARDS A RESTORATIVE SOCIETY 50 (Wipf and Stock) (2010),https://wipfandstock.com/9781608999057/restorative-justiceand-practices-in-new-zealand/. (last visited Mar 25, 2022). The Children, Young Persons, and Their Families Act was in response to concerns for children’s rights and inadequacies regarding young offenders in the criminal justice system.

19 See GABRIELLE M MAXWELL ET AL., RESTORATIVE JUSTICE AND PRACTICES IN NEW ZEALAND: TOWARDS A RESTORATIVE SOCIETY 31 (Wipf and Stock) (2010),https://wipfandstock.com/9781608999057/restorative-justiceand-practices-in-new-zealand/. (last visited Mar 25, 2022).

20 GABRIELLE M MAXWELL ET AL., RESTORATIVE JUSTICE AND PRACTICES IN NEW ZEALAND: TOWARDS A RESTORATIVE SOCIETY 41 (Wipf and Stock) (2010),https://wipfandstock.com/9781608999057/restorative-justiceand-practices-in-new-zealand/. (last visited Mar 25, 2022).

21 GABRIELLE M MAXWELL ET AL., RESTORATIVE JUSTICE AND PRACTICES IN NEW ZEALAND: TOWARDS A RESTORATIVE SOCIETY 54 (Wipf and Stock) (2010),https://wipfandstock.com/9781608999057/restorative-justiceand-practices-in-new-zealand/. (last visited Mar 25, 2022).

22 E.g., GABRIELLE M MAXWELL ET AL., RESTORATIVE JUSTICE AND PRACTICES IN NEW ZEALAND: TOWARDS A RESTORATIVE SOCIETY 66 (Wipf and Stock) (2010),https://wipfandstock.com/9781608999057/restorative-justiceand-practices-in-new-zealand/. (last visited Mar 25, 2022).

23 Morris, Allison, and Gabrielle Maxwell, 16-20 Restorative Justice in New Zealand: Family Group Conferences as a Case Study. Western Criminology Review 1.1 (1998).

24 See, e.g., United States. Bureau of Justice Statistics. National Prisoner Statistics, [United States], 1978-2018.

Inter-university Consortium for Political and Social Research [distributor], 2020-07-23. https://doi.org/10.3886/ICPSR37639.v1

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taking the goal of rehabilitation and reintegration out of focus. The goal of the restorative process is not to lower incarceration rates, but the process of evaluation and open dialogue can offer an alternative in the appropriate context.25 It should be noted that many proponents of these processes have seen a decline in the demand for punishment after the needs of communities are addressed and reconciled.26 When the primary goal is retribution, the victims of the crime are placed in a subsidiary role and the State becomes the principal offended party.27 From the perspective of the victim, satisfaction is often not fully achieved at sentencing. Without some level of understanding as to why this happened to them and no chance to express how they have been impacted on any level beyond a factual recount of events, they leave the encounter potentially unsatisfied and scorned.28 From the perspective of the offender, the process of a trial is designed to isolate them in an environment where all power is resigned to professionals with the understanding that they generally do not have fluency in courtroom formalities. When their justification for the crime is disregarded, the frustration that follows can manifest as continual offenses. Both the victim and the offender become bystanders in a process in which the primary beneficiary is the State and is inefficient at fully resolving their needs.29 Restorative programs offer a mediated platform for open dialogue between victim and perpetrator in which the focus is returned to their experiences without the interference of a judge and formal representation.30 The restructuring of roles that happens within restorative programs is a quality derived from aboriginal law, dismantling the hierarchical structure which in turn brings the focus back to the experiences of those directly involved.

Historically, these programs have not exonerated the offender from facing further retribution beyond the mediation. Instead, they center on addressing individual experiences so that the disciplinary action is fully understood and accepted.31 One of the grandest deficiencies of retributive justice is the culture of fear it forms between citizens and law enforcement. When the goal of a criminal reform system is to punish rather than rehabilitate and reintegrate, the adversarial relationship that is formed between the citizens and the State trickles down to the conduits of the system, breeding a cycle of tension and violence.32 In recent years, police related violent crimes have taken center stage in the media, highlighting the deteriorating relationship between the public and law enforcement. Interactions between historically marginalized racial communities and law enforcement through generations of American history have propagated this inimical narrative, rooting it deep in the foundations of entire communities and making the idea of future reconciliation feel unattainable.33 Restorative programs recognize that the aftermath of a crime influences more than just those immediately 25

E.g. HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE : A BESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 25 (Good Books Revised and updated) (2014) 26 (AUTHOR), CRITICAL ISSUES IN RESTORATIVE JUSTICE 10 (H. Zehr & B. Toews ed., Lynne Rienner) (2010) 27 See, e.g., D Roche, Accountability in Restorative Justice, 8 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 28 See HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE : A BESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 25 (Good Books Revised and updated) (2014) 29 See HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE : A BESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 25 (Good Books Revised and updated) (2014) 30 D Roche, Accountability in Restorative Justice, 9 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 31 See HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE : A BESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 20 (Good Books Revised and updated) (2014) 32 See (AUTHOR), CRITICAL ISSUES IN RESTORATIVE JUSTICE 381 (H. Zehr & B. Toews ed., Lynne Rienner) (2010) 33 See (AUTHOR), CRITICAL ISSUES IN RESTORATIVE JUSTICE 315-317 (H. Zehr & B. Toews ed., Lynne Rienner) (2010)

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involved and emphasizes the importance of rebuilding relationships between communities to prevent the spread of future enmity.34 IV.

ON RESTORATIVE JUSTICE PROGRAMS

In what we recognize as traditional sentencing programs there is little variation in how the decided sentence will be carried out. The one size fits all approach is meant to produce a consistent experience among those who enter the system so that the consequences of committing the analogous offense is well known, subsequently becoming a deterrent from future executions of the crime.35 When the solitary goal behind sentencing is to reproduce the inconvenience or pain that the victim experienced to then be imposed on the offender, no progress is being made toward the dissolution of the causal conflict.36 When the arbitration efforts of the State end with punishment, the relationships between the victim, offender, and affected communities are often neglected and left in an acrimonious state. Particularly in cases of racial and ethnic injustices, the persistent neglect of these relationships has formed a pattern of perpetuating into a generational strife, thus allowing the original conflict to reach across time and continue to negatively impact these communities. The primary difference between the more traditional system and the restorative process is that these programs can adapt to each case, adjusting their goals after an analysis of all moving parts so these relationships do not become collateral to retribution efforts.37 The restorative justice process cannot be defined by a singular practice. Rather it is a shift in the perspective on what the goal of the sentencing process should be so that the more long-term effects of the crime are addressed in a facilitated setting.38 The establishment of goals in the restorative process is the most crucial step for each case, making sure no variable goes unaddressed. The immediate objectives of these programs include the acknowledgement of wrongdoing, exchange of perspective, and restitution or vindication.39 Each of the aforementioned goals covers a broad definition, and not all need to be addressed in every case. Typically, a combination of aspects from all three goals is found to be the most beneficial when creating a program for each case. These immediate goals are designed to build to larger concluding goals meant to permeate the lives of all those involved moving forward. The long-term objectives include rehabilitation, responsibility, reintegration, and healing.40 These concepts are often perceived as adversarial to the goals of the retributive approach, which is only

34

See D Roche, Accountability in Restorative Justice, 26 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 35 See JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 204 (Oxford University Press) (2002) 36 See JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 190-191 (Oxford University Press) (2002) 37 See, e.g., DENNIS SULLIVAN & LARRY TIFFT, RESTORATIVE JUSTICE : HEALING THE FOUNDATIONS OF OUR EVERYDAY LIVES 59 (Willow Tree Press 2nd) (2005) 38 See HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE : A BESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 13-14 (Good Books Revised and updated) (2014) 39 See HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE : A BESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 23 (Good Books Revised and updated) (2014) 40 See, e.g., JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 88 (Oxford University Press) (2002)

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true when a criminal justice system is married to a singular ideology.41 Most of the programs under the restorative umbrella do not forgo restitution for restoration. It is simply an additional step in the process to make it more enriching.

Almost every element of these processes is subject to some degree of personalization, the most significant being the format of the program itself. Most programs fall into one of three categories, but there are many instances of hybrids of two or more of these categories to completely meet the needs of the specified area or case. The first classification of program is commonly referred to as Conference Programs, the fastest growing in terms of popularity in the western world over the last decade.42 Within a conference setting, the parties included in the mediation are the victim and offender, often accompanied by the support of a community or family members.43 While these types of programs have replaced formal incarceration in some cases, (most frequently in New Zealand, its country of origin), it has also been noted to accompany conviction in many instances.44 In the criminal justice sphere these conferences are often run by police departments or adjacent government departments but their active role is minimal, an appropriate way to describe their involvement is closer to the host side of the spectrum rather than the presiding authority figure.45 Conferences are the model most frequently associated with restorative justice because it is the most fluid design and offers the greatest degree of dialog between victim, offender, communities, or any combination of the three.

Of the three general forms these programs can take, sentencing panels are the most similar to courtroom proceedings.46 Sentencing panels are more thoroughly structured than conference models and are centered on addressing the offender. Generally, victims are not directly involved in sentencing panels but are represented by volunteers who provide statements on their behalf.47 The panel itself is typically composed by community volunteers and the process is typically facilitated by a government department. Typically, the offender appears before the panel in a manner similar to courtroom procedure, but the more intricate formalities are omitted from the process. Panels are meant to offer a community’s perspective on the crime, thereby allowing the offender a better understanding of the scope of the damage beyond the immediate victim. The volunteers are charged with the responsibility of deciding an appropriate restitution for the offender to pay, and the encounter is recorded for a judge to review, or one is present at the actual event.48 Multi-form programs take aspects of the previous two meeting types and pair them with intervention tools specific to their case to form a unique program.49 These programs can either 41

E.g. D Roche, Accountability in Restorative Justice, 230 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 42 See Ruloff, C. P. & Findler, Patrick (2022). On retributive justice. Think 21 (60):57-64.

43 See D Roche, Accountability in Restorative Justice, 66 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 44 E.g. D Roche, Accountability in Restorative Justice, 55 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 45 E.g. JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 45 (Oxford University Press) (2002) 46 See D Roche, Accountability in Restorative Justice, 67 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 47 See JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 45 (Oxford University Press) (2002) 48 See D Roche, Accountability in Restorative Justice, 120 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 49 See, e.g., D Roche, Accountability in Restorative Justice, 67 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004)

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replace formal sentencing or accompany it depending on the severity of the crime.50 The two programs previously mentioned are used as a kind of baseline model from which multi-form programs are created and practiced. Most restorative programs currently in place around the world fall under the umbrella of multi-form programs because of the wide range of intervention tools that are available to them. Some examples of this include the participation of psychologists, formal representation, judges, and support systems of both the victim and the offender. Most programs will take place in a conference setting when dealing with less serious crimes while the more serious offenses tend to have less active victim participation and do not typically replace formal sentencing.51 V.

THE DESTRUCTION OF THE OBELISK SANTA FE, NM (2020)

The foundation of New Mexico’s cultural history is deeply intertwined with that of the native tribes and their inimical relationship with Western society. Historic interactions between these two groups are associated with war, disease, and general animosity. Centuries after the first futile interactions between these two groups, distrust manufactured by generations of conflict has become deeply rooted within these communities. The cycle of allowing these high tensions to cultivate without intervention has continually led to physical confrontation as the root of these frustrations are continuously ignored. This cultural conflict was illustrated most recently at a protest at the historic Santa Fe Plaza in Santa Fe New Mexico (2020).52 The Plaza is home to an obelisk erected in 1866 to honor Civil War-era soldiers who died in battle with Native Americans.

The monument was considered controversial due to its inscription which referred to the native people as “savages”. For months leading up to the conflict, an all-female indigenous rights nonprofit group known as the Three Sisters Collective repeatedly tried to have the city remove the monument, a decision that was agreed to by the city council. After it was decided that the monument was too massive to remove, the inscription was shaved away instead.

On October 12th, 2020 a protest in the plaza resulted in the toppling of the monument by protestors.53 The removal of statues and monuments in memoriam of controversial historical figures is a conversation that has sparked controversy in New Mexico in recent years. Many citizens outside of indigenous communities feel that it is important to change the narrative surrounding historical figures that negatively impacted minority communities in the state. The opposition sees these monuments as an integral part of New Mexican history and do not think government funds should be allocated for their removal. In the case of the Obelisk, eight individuals were charged with vandalism and sentenced to participate in a restorative justice

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See, e.g., D Roche, Accountability in Restorative Justice, 69 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 51

See D Roche, Accountability in Restorative Justice, 124 LEGAL STUDIES : THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 52 Isabella Alves, Kyle Land, & T.S. Last. Protesters take over SF Plaza, topple obelisk (2020) https://www.abqjournal.com/1506285/native-american-activists-tear-down-santa-fe-obelisk.htm 53 KRQE Staff, 2 Arrested for Plaza Obelisk Toppling. (2020) https://www.krqe.com/news/crime/2-arrested-forplaza-obelisk-toppling/?ipid=promo-link-block

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program, complete 320 hours of community service and pay a combined fee of just over $15,000.54 Of the original eight charged, four completed the program and had their cases dismissed within a year of the conflict; the other four faced a more extensive list of offenses extending their cases into the present.55 The structure and details of the restorative meetings were made private as all defendants signed on to a confidentiality agreement, a decision that faced great criticism by the public.56 The reports from citizens supporting District Court Attorney Mary Carmack-Altwies’ referral to a restorative program were few and far between. The decision was in large part met with protest by the citizens of Santa Fe, referring to the program as “lacking both transparency and teeth” and that the defendants “got off easy”.57 Carmack-Altwies later released a statement in which she acknowledged the concerns of the community and confirmed her own frustrations with the confidential aspect of the meeting and urged restorative advocates to work towards a more transparent model for future cases.

The issue of confidentiality in restorative cases is a difficult subject to approach, especially when the issue affects entire communities as in the case of the obelisk. The protest, even if no injuries resulted from it, still caused disruption and damage to the Santa Fe Plaza, an act the citizens of Santa Fe want reparations for. Repairing community relationships is one of the foundational goals of restorative practices and confidentiality agreements such as this one exclude community involvement entirely. In this case, without community input, the narrative that formed around the program was that the reconstruction of interpersonal relationships was a goal the State was not truly devoted to making the allocation of resources in its benefit an inept cause. This is an example of how the restorative processes’ rejection of a set structure can make it difficult to satisfy the demands of all parties involved. The defendants signed on to a confidentiality agreement was due to some of them receiving violent threats as this was a case heavily covered by local media.58 Although this detail was made public, it was widely disregarded in most Santa Fe residents’ commentary on the case. This was an instance of generations worth of mistreatment experienced by a marginalized community that erupted in a passionate display of frustration; a conflict restorative justice is consistently referenced as being especially equipped to resolve. This is not to conclude that the program implemented by the State was entirely unsuccessful as transcripts from the interactions have remained confidential, but the accounts that are available from private citizens express significant disdain for the outcome of the proceedings. This case highlights some of the imperfections of restorative justice and how similarly to much of societal progression, there must be an allowance for trial and error if these inconsistencies are to be eliminated.

The high-profile nature of this case resulted in a barrier between the beneficence of the restorative justice process and most of the affected community, leaving a sour taste in the mouths of the public. The fluid definition of restorative practices contributed to the confusion around what 54

Sean P. Thomas, Obelisk Defendants Complete Restorative Justice Program. (2020) https://www.santafenewmexican.com/news/local_news/obelisk-defendants-complete-restorative-justiceprogram/article_42a369ca-8f81-11ec-9269-571e65941a9d.html 55 KRQE Staff, 2 Arrested for Plaza Obelisk Toppling. (2020) https://www.krqe.com/news/crime/2-arrested-forplaza-obelisk-toppling/?ipid=promo-link-block 56 E.g., KRQE Staff, 2 Arrested for Plaza Obelisk Toppling. (2020) https://www.krqe.com/news/crime/2-arrestedfor-plaza-obelisk-toppling/?ipid=promo-link-block 57 Sean P. Thomas, Obelisk Defendants Complete Restorative Justice Program. (2020) https://www.santafenewmexican.com/news/local_news/obelisk-defendants-complete-restorative-justiceprogram/article_42a369ca-8f81-11ec-9269-571e65941a9d.html 58 See Isabella Alves, Kyle Land, & T.S. Last. Protesters take over SF Plaza, topple obelisk (2020) https://www.abqjournal.com/1506285/native-american-activists-tear-down-santa-fe-obelisk.htm

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the purpose of the implementation of this program was, especially one so firmly adversarial to the traditional retributive approach. The disappointment garnered when the defendants did not face harsher punishment was amplified by the extensive media coverage, as a much larger audience was able to unify to express dissatisfaction with this decision. These are all variables that could not have been easily accounted for when the decision was made to move forward with a restorative program, but the results are invaluable to the reformation and implementation of future programs.

The contributions restorative justice processes can make in the mending of relationships between Native communities and the general population of New Mexico is a possibility in its infant stage of exploration. The growth of this movement is reliant upon the public’s support of restorative goals in a long-term context, despite the current imperfections displayed in the case of the obelisk.

VI.

CONCLUSION

When addressing the criminal justice system in the U.S., the idea that there is always room for improvement is an aphorism commonly forgotten as the issues with retributive justice are often assessed as less pestilential than the uncertainty of change. Even more frequently, the issues are denied acknowledgement altogether. As we progress into the modern era, these fallacies are becoming increasingly undeniable, tearing away at the traditionalist view of crime and how to deal with it most efficiently. No justice system will ever achieve perfection, but that does not mean there are no improvements to be made. Legislation is constantly being passed to better adapt the laws to the needs of society, but the perspective on crime and criminals is not as fluid, limiting the benefits of said legislation. One of the most prominent issues facing U.S. society in recent years is racial and ethnic communities as seen in the case of the obelisk, a conflict retributive justice is not equipped to resolve on its own. Modern movements for social justice have shown a spotlight on this disunity and the criminal justice system’s proclivity for furthering this divide. Restorative practices offer an avenue through which these pervasive societal issues can be addressed as we progress into an era which prioritizes equality and healing within communities. The complexities of generational trauma can make the task of relational progress seem exceptionally daunting, as seen in the case of the Obelisk. If these past iniquities continue to go unaddressed, the anger fostered by generations of injustices will negatively affect every future generation in the United States. The restorative program implemented in the Obelisk case was not as well-received as the ambassadors of the theology hoped it would be, but its achievements are no less valued. The controversy surrounding the introduction of restorative values into the criminal justice system which stands where these values were first conceptualized has given the issue a platform in modern media. A conversation about how to begin the reconciliation efforts with the indigenous people of New Mexico was prompted by the restorative efforts of the State, a victory which cannot be overlooked.

To make relational progress, retributive justice can no longer be the only acceptable form of justice in the United States. The domination of land and their inhabiting cultures is a consistent theme in U.S. history, but the strong hierarchical structure that is necessary to achieve control of groups of people that is reflected in our criminal justice system is no longer appropriate in a society that is now focused on the achievement of equality. Retributive justice has the tools to address many of the fallacies of the traditional system but until its goals are recognized as valuable to the enhancement of the current process, it will never gain the traction it needs to make an impact. The trial and error demonstrated by the Obelisk case is important to assess the strengths and weaknesses

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of these programs and to assess the capacity in which they will best fit into the current system across the U.S.. Neither restorative nor retributive justice on their own will adequately provide the structure needed to optimize the U.S. criminal justice system, but a combined symbiosis has the potential to address a greater majority of societal conflict. In order to achieve this, the narrative that these systems must be adversarial has to be eliminated along with the idea that civil punishment is a strong, American trait. Restorative justice has the potential to grow into a functioning relationship with retributive justice, bringing an aboriginal perspective back into the land of its origin.

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Neurolaw: Fad or Future?

Emma Chen Edited by Owen Lucas Agbayani

The intersection of neuroscience and the law – aptly coined “neurolaw” – is a burgeoning field that has generated new avenues of dialogue between legal scholars, philosophers, and scientists. Within this discourse, there are two questions that present themselves time and time again: can neuroscience inform the law, and should neuroscience inform the law? These questions are often invoked with respect to the application of neuroscience in criminal law, given that some opine (and others ardently disagree) that neuroscientific findings may bear on the nature of criminal responsibility. Here, I take and defend a stance of cautious optimism: while neuroscience could potentially shift our normative view on criminal responsibility in certain cases, such a shift should be limited and occur with prudence. Before neuroscience can become a worthwhile informant to criminal law, there is careful educational work that needs to be done to safeguard against potential misuses of neuroscience.

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I.

INTRODUCTION

On March 30, 1981, John Hinckley Jr. attempted to assassinate U.S. President Ronald Reagan. Hinckley used a revolver to fire six shots, one of which ricocheted and struck the president, with the bullet stopping less than an inch short of Reagan’s heart.59 While speaking on his motive for his actions, Hinckley confessed that by assassinating the president, he had hoped to win the affections of actress Jodie Foster, whom he had developed a pathological obsession with.60 Along with descriptions of these admissions and the expert testimony of a forensic psychiatrist, Hinckley’s defense team supplied a computed tomography (CT) scan of his brain to support the claim that Hinckley had schizophrenia, a condition, they argued, that severely limited Hinckley’s ability to discern right from wrong.61 United States v. Hinckley (1981)62 marked the first time brain scans were used in a U.S. courtroom to support a psychiatric diagnosis;63 it remains to this day one of the most highly publicized criminal cases to involve some form of neuroscientific evidence. Ultimately, Hinckley was found not guilty due to reason of insanity; this ruling was met with instantaneous backlash.64 Specifically, criticism was directed towards the admission of Hinckley’s CT scan as evidence on the grounds that the image may have misled and biased the jury.65 Public outcry surrounding the verdict was so relentless that many states reacted by tightening the rules which governed their insanity defense.66 Neuroscientific evidence – defined as “expert testimony related to brain structure or function and/or neuroimages presented as evidence”67 – continues to be employed in the courtroom. In fact, as neuroimaging technology becomes increasingly accessible and affordable, there emerges an upward trend in the rate in which neuroscientific evidence is presented in criminal hearings.68 Thus, the issue of neuroscience and its place in criminal law is certainly here to stay.

The use of brain images in the courtroom represents one extension of the field of neurolaw, an interdisciplinary partnership of neuroscience with the law. Neurolaw has garnered an exponential increase in legal, scientific, and public attention within the 21st century.69 Furthermore, while neuroscience has been introduced into many law divisions, it has been under 59

Reagen Assassination Attempt Interview Reports, (2011), https://web.archive.org/web/20110721062148/https://www.secretservice.gov/Reagan%20Assassination%20Attempt %20Interview%20Reports.pdf.

60 LINCOLN CAPLAN, THE INSANITY DEFENSE AND THE TRIAL OF JOHN W. HINCKLEY, JR (1984).

61 Stuart Taylor, CAT scans said to show shrunken Hinckley brain, 2 N. Y. TIMES 1982 (1982).

62 United States v. Hinckley, 525 F. Supp. 1342 (1981).

63 KENT A. KIEHL, THE PSYCHOPATH WHISPERER: THE SCIENCE OF THOSE WITHOUT CONSCIENCE (2015).

64 Constance Holden, Insanity defense reexamined: The AMA board recommends its abolition but lawyers and psychiatrists say that would undermine the moral basis of criminal law, 222 SCIENCE 994–995 (1983).

65 Laura Stephens Khoshbin & Shahram Khoshbin, Imaging the mind, minding the image: An historical introduction to brain imaging and the law, 33 AM. J. LAW MED. 171–192 (2007).

66 Stephen Morse, Before and After Hinckley: Legal Insanity in the United States, U PENN LAW SCH. PUBLIC LAW RES. PAP. (2021).

67 Darby Aono, Gideon Yaffe & Hedy Kober, Neuroscientific evidence in the courtroom: a review, 4 COGN. RES. PRINC. IMPLIC. 1–20 (2019).

68 Nita A. Farahany, Neuroscience and behavioral genetics in US criminal law: an empirical analysis, 2 J. LAW BIOSCI. 485–509 (2016).

69 Francis X. Shen, The law and neuroscience bibliography: Navigating the emerging field of neurolaw, 38 INT. J. LEG. INF. 352–399 (2010).

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the brightest spotlight with its entrance into criminal law. Just as in United States v. Hinckley, the context in which neuroscience often interacts with criminal law is often used to demonstrate some brain abnormality that impairs the defendant’s ability to act rationally or voluntarily, thereby limiting just how culpable the defendant may be for the crime in question. Yet there remains fervent debate concerning what exactly neuroscience has to offer the criminal justice system: can it help us achieve greater justice, or are we misconstruing this novel science for more than it is?

In this paper, I contend that, while neuroscience can and should inform criminal law,70 one can expect the legal influence of neuroscience to be bound to a limited number of cases.

Additionally, to prevent the misuse of neuroscientific evidence in the courtroom, I argue that special attention must be given to the matter of educating legal scholars on how to apply, interpret, and understand neuroscience. Section 1.1 provides a brief overview of how neuroscience has contributed to criminal law thus far. Section 1.2 then considers the types of cases in which neuroscience can offer valuable insight. Section 1.3 reviews some potential criticisms concerning the advent of neurolaw. Finally, Section 1.4 concludes with a cautious outlook on how neuroscience may be of service to criminal law in the near future.

II.

THE CURRENT LANDSCAPE

Neurolaw is often characterized as a new and emerging field.71 Over 2,800 judicial opinions issued between 2005 and 2015 discussed the use of neuroscientific evidence by criminal defendants as a part of their defense.72 Research suggests that such evidence is typically employed during the sentencing phase of a criminal case, during which neuroscience is used to support the argument that the defendant should be seen as less culpable for their actions (or, in rare cases, more culpable).73 In particular, the use of neuroscience in the courtroom appears to be increasingly common in high-stakes cases, i.e., cases involving serious felonies that may be punishable by a life sentence or death. In 2012, neuroscientific evidence was introduced in five percent of all murder trials and 25% of all death penalty trials.74 Parallel to its growing presence in the courtroom, neurolaw has also been the subject of great interest from research institutions keen on accomplishing a more systematic integration of neuroscience and law. In 2007, the MacArthur Foundation dedicated a $10 million grant towards the establishment of an interdisciplinary hub of neuroscientists and legal scholars, a group that would eventually develop into the Research Network on Law and Neuroscience.75 Under this organization, leading experts from both fields work in close collaboration with the shared goal of developing resources that would allow legal scholars to “constructively use findings from

70

Ariane Bigenwald & Valerian Chambon, Criminal responsibility and neuroscience: no revolution yet, 10 FRONT. PSYCHOL. 1406 (2019).

71 Francis X. Shen, The overlooked history of neurolaw, 85 FORDHAM REV 667 (2016).

72 Henry T. Greely & Nita A. Farahany, Neuroscience and the criminal justice system, ANNU. REV. CRIMINOL. (2019).

73 Deborah W. Denno, The myth of the double-edged sword: An empirical study of neuroscience evidence in criminal cases, 56 BCL REV 493 (2015); John B. Meixner, The use of neuroscience evidence in criminal proceedings, J. LAW BIOSCI. 330–335 (2016).

74 Farahany, supra note 10.

75 History: Phase I (2007-2011), MACARTHUR FOUNDATION RESEARCH NETWORK ON LAW AND NEUROSCIENCE, https://www.lawneuro.org/history.php.

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cognitive neuroscience to improve the administration of justice.”76 Since its initial founding, the network has produced over 100 research papers,77 a neurolaw casebook,78 and a comprehensive bibliography which contains nearly all publications relevant to both disciplines ever released.79 There are many specialized divisions within neurolaw research, with topics often being so narrow and varied that it becomes difficult to slot them into organized categories. From lie detection using functional magnetic resonance imaging (fMRI)80 to the study of cerebral atrophy caused by solitary confinement81 to the development of objective neural markers of pain,82 the neurolaw landscape canvases all sorts of intriguing issues. Here, it is helpful to use our current legal framework for determining criminal responsibility to guide our analysis of the existing neuroscience literature that specifically concerns criminal law.

The legal system considers persons to be criminally responsible for their behavior if they commit: 1) a guilty act, 2) with a guilty mind, and 3) while lacking affirmative defenses that diminish or negate their responsibility (e.g., insanity, self-defense, duress).83 Thus, neurolaw research on criminal responsibility can largely be construed as falling into at least one of three categories: 1) research which sheds light on actus rea, or the physical act of a crime, 2) research on mens rea, the mental state of the offender at the time of the crime, and 3) research on the nature of affirmative defenses, which, within the context of neuroscience, often focuses on the insanity defense.84 Neuroscience has been able to contribute to our understanding of all three facets of criminal responsibility. With regards to actus rea, neuroscience research has helped us understand and identify atypical cases in which seemingly voluntary actions occurred in the absence of full consciousness. For example, in 2003, a jury convicted Yun Liao of attempted murder after Liao attacked his ex-partner’s son with a hammer, causing the victim to sustain severe but non-fatal injuries.85 Liao’s unsuccessful defense was that he had not been conscious during the attack: the man claimed that he had been sleepwalking and therefore had been neither awake nor aware. A large part of why this defense failed was the fact that Liao had never actually received an official diagnosis of sleepwalking by means of a sleep study. During a sleep study, the electrical activity of a sleeping individual’s brain is recorded using electrodes placed on the scalp; analyzing this activity can reveal whether the person exhibits a sleep-related disorder. Liao’s defense team had been mistakenly told that their request for a court order authorizing a sleep study had been denied.

When this error was discovered, Liao filed a writ of habeas corpus, which was successfully granted, and completed a sleep test which confirmed a diagnosis of sleepwalking. An appeals court overturned Liao’s conviction, citing that if the results of Liao’s sleep study had been introduced in the original trial, there was good reason to believe that Liao would have been acquitted. In 2016, 76

Id. Id. 78 OWEN D. JONES, JEFFREY D. SCHALL & FRANCIS X. SHEN, LAW AND NEUROSCIENCE (2015).

79 Shen, supra note 11.

80 Martha J. Farah et al., Functional MRI-based lie detection: scientific and societal challenges, 15 NAT. REV. NEUROSCI. 123–131 (2014).

81 Jules Lobel & Huda Akil, Law & neuroscience: The case of solitary confinement, 147 DAEDALUS 61–75 (2018).

82 Karen D. Davis et al., Brain imaging tests for chronic pain: medical, legal and ethical issues and recommendations, 13 NAT. REV. NEUROL. 624–638 (2017).

83 Uri Maoz & Gideon Yaffe, What does recent neuroscience tell us about criminal responsibility?, 3 J. LAW BIOSCI. 120–139 (2016).

84 Id. 85 Yun Hseng Liao v. Junious, 817 F 3d 678 (2016).

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all charges against Liao were dropped.86 While sleep disorders serve as just one example of a type of condition relevant to actus rea, they effectively illustrate the powerful way in which neuroscience can be invoked to influence legal judgements.

With regards to affirmative defenses, preliminary research suggests that the increase of neuroscientific evidence has played a part in instigating an overall decrease in the use of the insanity defense.87 Legal scholar Deborah Denno conducted a study analyzing over 800 criminal cases from 1992 to 2012 and found that prior to the early 20th century, if neuroscientific evidence was presented in court, it was typically used to support a “catch-all” insanity defense (as in the case of Hinckley) that covered a broad range of mental disorders.88 However, beginning in the 1990s, neuroscience was used in the courtroom in a more tailored way; psychiatric expert testimony, brain images supporting mental disorder diagnoses, and background medical reports on the defendant all aimed to identify the exact neurological abnormality of the defendant.89 This mitigating evidence attempts to provide a more specific explanation for a defendant’s behavior in lieu of an overarching insanity defense.90 Despite these notable contributions, neuroscience has arguably had the most success in impacting criminal law particularly through research that elucidates the factors which may affect mens rea. The impact of neuroscience on our understanding of the mental states which precede and influence criminal acts is explored in the following section.

III.

THE CASE FOR NEUROLAW

In their 2016 paper “What does recent neuroscience tell us about criminal responsibility?”, neuroscientist Uri Maoz and philosopher Gideon Yaffe opine, “an area where the law could particularly use assistance from neuroscience concerns the impact of mental disorders on mental states crucial to criminal responsibility.”91 The law already recognizes that mental states can act as mitigating or aggravating factors during sentencing. Being consciously aware of the risks of one’s actions, as an example, separates criminal recklessness from negligence. Neuroscience offers a unique ability to illuminate atypical mental states that may be of important legal consideration. In fact, neuroscience has already begun to demonstrate its value in this regard. Below are three areas in which neuroscience has provided evidence for thinking that underdeveloped or deficient brain faculties reduce responsibility in ways that are relevant to criminal law.

A. Adolescence In 2012, the U.S. Supreme Court ruled that juveniles could not be given a life sentence without parole, stating that such a punishment would be cruel and unjust.92 This decision fits into 86

Sleepwalking murder conviction overturned over lack of sleep test, LOS ANGELES TIMES (2016), https://www.latimes.com/local/lanow/la-me-ln-sleepwalking-murder-conviction-overturned-over-lack-of-sleep-test20160129-story.html.

87 Denno, supra note 15.

88 WMLAWCOMMUNICATIONS, Imagining the Future of Law & Neuroscience: Panel 2, (2021), https://www.youtube.com/watch?v=Up7flFMAsao.

89 Denno, supra note 15.

90 WMLAWCOMMUNICATIONS, supra note 30.

91 Maoz and Yaffe, supra note 25.

92 Miller v. Alabama, 567 US 460 (2012).

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a pattern of other recent Supreme Court rulings in which less severe punishments were deemed appropriate for adolescent offenders.93 In the 2012 case (Roper v. Simmons), the Court was provided with neuroscientific evidence supporting the neurobiological immaturity of adolescents in comparison with adults.

The area of the brain responsible for a host of executive functions, the prefrontal cortex, does not reach full development until around 25 years of age.94 This developmental immaturity, supported by a host of neuroimaging studies, causes adolescents to be distinct from adults in three important ways.95 First, relative to adults, juveniles exhibit a diminished capacity to regulate their emotional responses to provoking stimuli; thus, they possess a decreased ability to inhibit impulses. Second, they are more sensitive to social influences, making them more malleable to external factors like peer pressure. Third, they demonstrate stunted risk assessment capacities; consequently, adolescents frequently fail to consider the distal consequences of their actions (as opposed to more proximal outcomes). Furthermore, different brain systems develop at different rates, such that the system thought to be responsible for promoting pleasure-seeking behavior and emotional reactivity matures faster than the system which regulates self-control.96 Taken together, these developmental characteristics have been invoked to support the claim that juvenile offenders are less blameworthy for their actions in comparison to adults. As described by neuroendocrinologist Robert Sapolsky, these abnormalities “produce an individual capable of differentiating right from wrong but who, nonetheless, is organically incapable of appropriately regulating their behavior.”97 In the case of adolescence, neuroscience has contributed to the view that minors cannot be held to the same degree of responsibility as fully matured individuals, a view that appears to be becoming more readily accepted in criminal law.

B. Psychopathy Psychopathy is a disorder marked by severe emotional and behavioral defects, including callousness, pathological lying, manipulative tendencies, and a lack of guilt and remorse.98 Due to these traits, psychopaths are more likely to commit a criminal offense than non-psychopaths; psychopaths are estimated to constitute around 20% of the total prison population.99 Recent neuroscience research on psychopathy demonstrates that, on average, psychopaths exhibit reduced gray matter volume in areas of the brain that form the limbic system, the network responsible for emotion regulation. In one seminal fMRI study, adult psychopaths were found to exhibit significantly less activity in the amygdala, hippocampus, and ventral striatum – i.e., limbic system structures – when completing an emotion-based memory task in comparison to nonpsychopaths.100

93

Roper v. Simmons, 543 US 551 (2005); Graham v. Florida, 560 US 48 (2010).

Mariam Arain et al., Maturation of the adolescent brain, 9 NEUROPSYCHIATR. DIS. TREAT. 449 (2013).

95 NATIONAL RESEARCH COUNCIL, REFORMING JUVENILE JUSTICE: A DEVELOPMENTAL APPROACH (2013).

96 Id. 97 Robert M Sapolsky, The frontal cortex and the criminal justice system., 359 PHILOS. TRANS. R. SOC. B BIOL. SCI. 1787–1796 (2004).s 98 Kent A. Kiehl, A cognitive neuroscience perspective on psychopathy: Evidence for paralimbic system dysfunction, 142 PSYCHIATRY RES. 107–128 (2006).

99 Robert D. Hare, Manual for the hare psychopathy checklist, 2nd edn, revised, TOR. MULTI-HEALTH SYST. (2003).

100 Kent A. Kiehl et al., Limbic abnormalities in affective processing by criminal psychopaths as revealed by functional magnetic resonance imaging, 50 BIOL. PSYCHIATRY 677–684 (2001).

94

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Here, it is important to note that these findings do not establish a direction of cause and effect. It is unclear whether these functional deficiencies generate a developmental predisposition to psychopathy or if psychopathic tendencies are what lead to impaired limbic function over time (perhaps from underuse of such limbic regions). However, preliminary research suggests that the limbic defects found in adult psychopaths are also present in incarcerated youth who demonstrate psychopathic tendencies.101 Some have interpreted these findings as evidence against the impairment-from-misuse hypothesis and in favor of one that posits a genetic predisposition to psychopathy.102 While neuroscience research illuminating the cognitive defects of psychopath has not caused psychopathy to be generally accepted as a mitigating factor for culpability (and whether it should be is contentious), such research has had success in informing the development of innovative treatments for the disorder. Psychopathy has long been thought to be a permanent condition resistant to most forms of treatment.103 However, in 2001, Michael Caldwell and colleagues at the Mendota Juvenile Treatment Center in Madison, Wisconsin made breakthrough strides in psychopathy treatment by developing a new intervention known as decompression therapy.104 Decompression therapy focuses on strengthening the brain circuits that regulates prosocial behavior by rewarding any and all such behaviors demonstrated by a psychopathic individual, thereby positively reinforcing prosocial conduct. In an initial study assessing the intervention’s effect on juvenile psychopaths, 10% of those who received the decompression therapy reoffended within two years following their release. In contrast, 70% of those who had received no treatment reoffended within the same time span.105 While less effective in swaying views of culpability, neuroscience has contributed to our understanding of psychopathy as a brainbased disorder, thereby ushering in new and effective strategies for the way we deal with psychopathic criminal offenders.

C. Addiction Addiction is a disorder deeply intertwined with the criminal justice system. Estimates suggest that, in 2006, approximately 85% of all incarcerated individuals in the United States had abused at least one type of substance in their lifetime.106 Within the 21st century, a subject of debate among both academics and the general public has been how to go about properly characterizing addiction. On one end of the spectrum, some argue that addiction is a disease; on the other end is the argument that addiction is a choice. Separate from these personal convictions, research on the neurobiology of addiction demonstrates that addiction alters a host of different brain regions; these changes affect the way the brain responds to reward, stress, and situations that require executive

101

Brandi C. Fink et al., Assessment of psychopathic traits in an incarcerated adolescent sample: A methodological comparison, 40 J. ABNORM. CHILD PSYCHOL. 971–986 (2012).

102 KIEHL, supra note 5.

103 Kent A. Kiehl & Morris B. Hoffman, The criminal psychopath: History, neuroscience, treatment, and economics, 51 JURIMETRICS 355 (2011).

104 Michael F. Caldwell & Gregory J. Van Rybroek, Efficacy of a decompression treatment model in the clinical management of violent juvenile offenders, 45 INT. J. OFFENDER THER. COMP. CRIMINOL. 469–477 (2001).

105 Id. 106 I. I. Behind Bars, Substance abuse and America’s prison population, N. Y. NY COLUMBIA UNIV. NATL. CENT. ADDICT. SUBST. ABUSE (2010).

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decision-making.107 These findings also highlight the fact that the changes induced by addiction tend to be long-lasting, which may explain why relapse is relatively common among long-time drug users, even after years of sobriety.108 Echoing the public discourse on the matter, academic scholars seem to be split on how addiction might mitigate culpability as well as how neuroscience might contribute to this discussion. Molecular neuroscientist Stephen Hyman posits that addiction leads to a situation in which one’s “neural circuits [are] hijacked by drugs” and that “apparently voluntary behaviors” performed by drug addicts “may not be as freely planned and executed as they first appear.”109 In contrast, law and psychology professor Stephen Morse argues that any neural deficits associated with addiction are irrelevant for determining the culpability of the offending addict: “…the question for the law and morals is behavioral, not brain states. People, not brains, are held responsible, are praised and blamed, rewarded and punished.”110 As demonstrated by this conflict, approaching addiction from the perspective of voluntary control is difficult. Thus, some have attempted to approach neuroscientific research on addiction from another route: namely, how addiction may affect our assessment of risk awareness. The law distinguishes between four levels of culpability based on mens rea, some of which are distinctly separated by how aware the offender was of the risk of their crimes.111 Namely, the law classifies that someone has acted recklessly when that person was aware of the riskiness of their act yet chose to act anyway, while the law classifies someone as having acted negligently when that person was unaware of any risk (but should have been). Thus, some have proposed that addiction should be studied from the perspective of how addiction might modulate one’s perception of risk awareness, although research on this topic has yet to be published.112 In contrast to the neuroscience of adolescence or psychopathy, considerably less consensus has been achieved with the application of addiction research to the law. However, one can reasonably expect progress to be made in this realm within the near future.

What is similar about the use of neuroscience in all three examples above? The answer is that neuroscience helps elucidate brain-based factors that may impose upon a person’s freedom to act in accordance with the law, limiting their capacity to be fully responsible agents. Here, the path to discussions on the broader implications of neuroscience on criminal responsibility can be explored. Could it be argued that all criminals are subject to similar limitations, albeit ones that are not so obvious? Indeed, this line of reasoning has already been spelled out and defended by a number of scientific scholars.113 For example, it is well-known that adverse childhood experiences, such as abuse, neglect, and exposure to substance abuse markedly increase one’s odds of criminality.114 If the likelihood of criminal behavior is substantially constrained by factors outside 107

George F. Koob & Nora D. Volkow, Neurobiology of addiction: a neurocircuitry analysis, 3 LANCET PSYCHIATRY 760–773 (2016).

108 Steven E. Hyman, The neurobiology of addiction: implications for voluntary control of behavior, 7 AM. J. BIOETH. 8–11 (2007).

109 Id. 110 Stephen J. Morse, Voluntary control of behavior and responsibility, 7 AM. J. BIOETH. 12–13 (2007).

111 Paul H. Robinson, Mens Rea (2002).

112 Maoz and Yaffe, supra note 25; LAWNEURO.ORG, Gideon Yaffe presents Criminal Responsibility & Neuroscience of Addiction. Stanford, March, 2013, (2014), https://www.youtube.com/watch?v=3Ri1a8mwfH8.

113 Semir Zeki et al., For the law, neuroscience changes nothing and everything, 359 PHILOS. TRANS. R. SOC. LOND. B. BIOL. SCI. 1775–1785 (2004); Robert M. Sapolsky, Neuroscience and the Law, 15 U ST THOMAS JL PUB POL 138 (2021).

114 WMLAWCOMMUNICATIONS, supra note 30.

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of the individual’s control, some argue that it seems cruel to assume full criminal responsibility to that individual and subsequently the full gauntlet of punishment.115 Taken together, if these arguments are accepted, they may have the potential to slowly shift our moral intuitions about what constitutes justice. Shifts in moral intuitions may subsequently lead to shifts in the way the law assigns criminal responsibility. As stated by Green and Cohen (2004), “the legitimacy of the law itself depends on its adequately reflecting the moral intuitions and commitments of society. If neuroscience can change those intuitions, then neuroscience can change the law.”116 Similarly, Cardoso (2021) states, “If neuroscience is set to change anything in the law and in the legal system itself, it will have to do it by changing people’s underlying beliefs about justice, responsibility, retributivism and so forth.”117 Whether or not these lines of arguments should be accepted is another matter altogether, and a discussion that is beyond the scope of this paper. For now, most remain ambivalent on the justification for any sort of neurolaw “revolution”; as exemplified by a substantial body of papers expressing dissenting opinions on the broader scope of neurolaw, there remains careful work to be done among legal and philosophical scholars with regards to these sorts of progressive interpretations of neuroscientific findings.118 While these more abstract, overarching debates take place, we can still move forward with neurolaw by embracing neuroscience in legal contexts in its applications that are particularly insightful – namely, its ability to elucidate diagnosable disorders which diminish criminal responsibility and develop treatments to alleviate the symptoms of such disorders.

IV.

THE CASE AGAINST NEUROLAW

Despite its potential in certain areas of criminal law, a number of concerns have been raised in regard to the legitimacy of neuroscience’s relevance to criminal justice. Here, I outline two of the more common lines of attack and provide reasons for thinking that these criticisms are largely unsuccessful. In response to the second criticism, which focuses on the pragmatic implications of neurolaw, I emphasize the importance of outreach and education as fundamental to the success of neurolaw, as these measures will prevent against potential abuses of neuroscientific evidence in legal contexts.

A. The criminal law system is immune to the discoveries neuroscience is making Several scholars from legal backgrounds argue that neuroscience can only make a limited impact, if any impact at all, on the criminal law system. In his 2011 paper titled “Avoiding irrational neurolaw exuberance: a plea for neuromodesty,” Morse posits that neuroscience “does not pose a genuinely radical challenge to the law's concepts of the person and responsibility."119 Morse’s view is primarily concerned with whether neuroscience can thoroughly revolutionize criminal law, rather than with the more modest contributions outlined in the previous section. He 115

Id. Zeki et al., supra note 55.

117 Renato César Cardoso, Neurolaw and the neuroscience of free will: an overview, SCIO 55–81 (2021).

118 Stephen Morse, Lost in translation?: An essay on law and neuroscience, 13 ESSAY LAW NEUROSCI. AUGUST 3 2011 LAW NEUROSCI. CURR. LEG. ISSUES 529 (2011); Adina Roskies, Neuroscientific challenges to free will and responsibility, 10 TRENDS COGN. SCI. 419–423 (2006).

119 Stephen Morse, Avoiding irrational neurolaw exuberance: a plea for neuromodesty, 3 LAW INNOV. TECHNOL. 209–228 (2011).

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argues that the criminal law system is set up in a way that makes it fundamentally immune to any grand discoveries that neuroscience might make with regards to abstract concepts like moral responsibility or free will. Even if neuroscience were to discover that humans were somehow without free will, our concept of criminal responsibility would still be conserved. Morse notes that, for an agent to be generally viewed as having legal responsibility, the law simply requires agents to be guided by reasons and that one’s mental states are the cause of one’s behavior. Given that these two conditions would remain true in a world without free will, neuroscience does not threaten our normative approach to criminal responsibility.

This argument assumes that these two conditions are immutable. This assumption is questionable given that the law is a dynamic, rather than a static, system, and it can change based on what the folk conceptions of concepts such as freedom and responsibility are. As previously discussed, there have been efforts to push for paradigmatic shifts in the way we conceive of such notions by appealing to neuroscience. Novel frameworks of criminal responsibility, drawing from neurophilosophical research, have been proposed and which suggest a radical transformation in the way we respond to criminal behavior.120 Some of these models posit that all criminal behavior is a result of factors beyond the criminal’s control, and this precludes criminals from ever being truly deserving of blame or punishment. Thus, these models push for preventative and rehabilitative measures in response to criminal behavior as opposed to retribution-based practices.

If these transformative efforts are even just partially successful, they can, in fact, undermine the basic understanding that we have of what constitutes freedom and responsibility, consequently shifting our normative approaches for dealing with criminal offenders.

B. The current criminal law system is not ready to accept neuroscience Rather than take an abstract approach, some skeptics of neurolaw adopt a more pragmatic line of reasoning, arguing that there is a considerable risk of neuroscientific evidence being misused in the courtroom.121 Numerous scholars have voiced concern that neuroscientific evidence may confuse or bias courtroom members; this concern was amplified when a study published in 2008 seemingly confirmed the presence of a biasing effect with the presentation of neuroimages.122 The colorful brain scans, technical jargon, and expert witness testimony may certainly be compelling to some jury members. However, several more recent studies, including one that sampled over 1,000 subjects, found that there was no evidence to suggest that neuroimages impact jurors’ judgments of culpability any more than simple verbal evidence.123 Thus, preliminary research on the biasing effects of neuroimages in the courtroom does not draw any clear consensus.

120

Gregg D. Caruso, Free will skepticism and criminal behavior: A public health-quarantine model, 32 SOUTHWEST PHILOS. REV. 25–48 (2016); Derk Pereboom & Gregg Caruso, Hard-incompatibilist existentialism: Neuroscience, punishment, and meaning in life, NEUROEXISTENTIALISM MEAN. MORALS PURP. AGE NEUROSCI. OUP ED. GREGG CARUSO OWEN FLANAGAN FORTHCOM. (2002).

121 Professor Warns of Improper Use of Neuroscience in Courtroom, FORDHAM NEWSROOM (2019), https://news.fordham.edu/law/professor-warns-of-improper-use-of-neuroscience-in-courtroom/ (last visited Apr 24, 2022).

122 Jessica R. Gurley & David K. Marcus, The effects of neuroimaging and brain injury on insanity defenses, 26 BEHAV. SCI. LAW 85–97 (2008).

123 Adina L. Roskies, Nicholas J. Schweitzer & Michael J. Saks, Neuroimages in court: less biasing than feared, 17 TRENDS COGN. SCI. 99–101 (2013); Nicholas J. Schweitzer et al., Neuroimages as evidence in a mens rea defense: No impact., 17 PSYCHOL. PUBLIC POLICY LAW 357 (2011).

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Despite very little research suggesting this to be the case, it is still entirely possible that neuroscientific evidence can be misinterpreted or distorted in a way that can mislead judges and jurors. In scenarios like these, neuroscience might serve as a detriment to the serving of justice. A sort of “neurolaw exuberance,” as coined by Morse, could inadvertently encourage the misuse of neuroscientific evidence in criminal proceedings. 124 Fortunately, this concern can be dealt with through efforts to educate legal scholars on how to go about navigating neuroscientific evidence.

Such efforts, in fact, have already begun to take place. Courses on neurolaw are being developed and taught at a number of prominent law schools, guides for judges have been published concerning how to regulate courtroom presentations of neuroscientific evidence, and conferences in which neuroscientists and legal scholars collaborate and discuss topical issues are being held.125 A number of joint Ph.D./J.D. programs have cropped up at some of the leading law schools across the United States, aiming to produce legal scholars who are proficient at applying scientific findings to the law.126 Such outreach and educational efforts are paramount to ensuring the responsible use of neuroscience in criminal law in a way that neither discounts the value of neuroscientific evidence nor overexaggerates neuroscientific findings. The success of work that aims to integrate neuroscience into criminal law education, as well as regulate the use of neuroscience in the courtroom, is what will ultimately determine the success of neurolaw as a burgeoning field.

V.

CONCLUSION

Revisiting the case of John Hinckley, had he been found guilty despite the evidence of his insanity, he would have almost certainly failed to receive adequate mental health treatment for his schizophrenia. His condition would have continued to deteriorate, and he would have likely been the target of prison violence due to the nature of his crime. These factors practically guarantee that Hinckley would have been killed within the first few years of his prison sentence. Instead, as a result of his insanity ruling, he was sent to a psychiatric facility, where he received treatment and rehabilitation and, eventually, largely recovered from his disorder.127 Despite the positive outcome of Hinckley in the long-term, Hinckley’s case should serve as a cautionary tale against the presentation of neuroscientific evidence in the courtroom without adequate educatory measures. Anger surrounding Hinckley’s verdict set off a chain reaction of restrictive legal change that altogether made it less likely for those with impaired mental capacities to be treated fairly under the law. Perhaps if the neuroscientific evidence used in Hinckley’s trial had been explained more clearly and its limitations been more explicitly addressed, greater understanding concerning the trial’s verdict would have been achieved, preventing the severe reactions to the case. If neuroscientific evidence is misconstrued, overexaggerated, or 124

Morse, supra note 61.

MacArthur Foundation Research Network on Law and Neuroscience | Vanderbilt University, https://www.lawneuro.org/ (last visited Apr 24, 2022).

126 Dual Degree Programs | Prospective Students | Law School | Vanderbilt University, https://law.vanderbilt.edu/prospective-students/dual-degree-programs.php; Stanford Law School, Law Neurosciences IDP, School of Medicine, NEURS, STANFORD LAW SCHOOL, https://law.stanford.edu/education/degrees/joint-degrees-within-stanford-university/law-neurosciences-idp-schoolmedicine-neurs/.

127 Carrie Johnson, John Hinckley, Who Shot President Reagan, Wins Unconditional Release, NPR, September 27, 2021, https://www.npr.org/2021/09/27/1040872498/john-hinckley-unconditional-release.

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oversimplified, this increases the likelihood of confusion and controversy that, in turn, is likely to foster skepticism concerning the admissibility of neuroscientific evidence in the courtroom. There are clear, practical areas in which neuroscience can truly serve as a valuable informant to criminal law, areas in which neuroscience may increase justice where justice was previously absent.

Namely, neuroscience grants us the unique capacity to “look inside” the brain of a criminal offender and attain a clearer understanding of how certain mental abnormalities might fit into the bigger picture of criminal behavior. It would be an indefensible disservice to justice if such opportunities for interdisciplinary collaboration were closed off due to miseducation and unwarranted mistrust.

The author would like to extend her gratitude to Chapman University Undergraduate Law Review editor Owen Lucas Agbayani for his considerable and generous support throughout the writing process. Additionally, the author would like to thank Dr. Uri Maoz and Dr. Michael Robinson for their assistance with the preparation of this manuscript.

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COVID-19 Transmission in the U.S. Criminal Justice System Angelina Cayabyab Edited by Cynthia Le

Mass incarceration is known for increasing disease outbreaks and spreading diseases to surrounding communities. Mass incarceration is threatening the public health of inmates who belong in marginalized communities, all of whom are disproportionately affected the most by the COVID-19 pandemic. Policy interventions that are intended to lower the exacerbation of COVID-19 transmission and preserve public health in the U.S. criminal justice system are associated with the decarceration of inmates. Decarceration is the process where inmates are physically distanced and ensured with shorter sentences128. The orders issued by local and state governments had to be fast in reducing inmate sentences.

In this article, I place myself in favor of the public health perspective and argue that decarceration is a necessary attribute in reducing COVID-19 rates in correctional facilities. Decarceration is the most effective method in ensuring the public health and safety of people inside of correctional facilities and its surrounding area. Using decarceration as a tool to reduce COVID-19 transmission in the U.S. criminal justice system has been proven to be effective for individuals inside of correctional facilities. Whereas, correctional facilities without decarceration have encountered inmates with adverse health outcomes, negative interactions with inmates’ families, and non-compliance issues.

128

Decarceration Law and Legal Definition, USLEGAL, INC. (Apr. 4, 2022, 5:52 PM), https://definitions.uslegal.com/d/decarceration/#:~:text=Decarceration%20is%20a%20government%20policy,is%20 the%20opposite%20of%20incarceration.

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I.

PUBLIC HEALTH PERSPECTIVE

“After considering medical records and expert testimony presented by Mr. Page, who fell ill from COVID-19 while his motion for compassionate release was pending, the Superior Court determined that “Mr. Page's medical conditions increase his risk of severe disease if he contracts the coronavirus again.” Even so, the court determined Mr. Page had not established an extraordinary and compelling reason to make himself eligible for a sentence reduction under D.C. Code § 24-403.04(a)(3) (2021 Supp.), because he had not shown that he was likely to be reinfected while in prison.”129 In Page v. United States (2020), the Superior Court of the District of Columbia announced that Mr. Page, a District of Columbia prisoner, did not fit the criteria for having an extraordinary and compelling reason to reduce his sentence since he did not appear to be reinfected in that circumstance. The Superior Court did not fully consider the health risks imposed on Mr. Page for being in an enclosed space, which would make it easier for viruses to spread. Mr. Page would have no choice but to be an inmate in a correctional facility, irrespective of his underlying medical conditions that would be exacerbated by COVID-19. On March 11, 2020, the World Health Organization declared that the world is experiencing a COVID-19 pandemic.130 Soon after, the District of Columbia Council enabled compassionate release authority of inmates by passing a permanent legislation. As depicted from Page v. United States (2020), it was not easily permissible to release a D.C. prisoner with underlying medical conditions until health authorities permitted on the grounds that we are in a COVID-19 pandemic.131 The United States’ Criminal Justice System has had numerous reports on inadequate COVID-19 testing and jail exposure. The criminal justice reports have shown that in comparison to the general U.S. population, incarcerated individuals have encountered higher COVID-19 rates. COVID-19 mortality rates are considered by sex, racial/ethnic, and age differences. What’s more, U.S. jails and prisons have been proven to be inadequate in the process of collecting COVID-19 data and maintaining a sustainable public health infrastructure, meaning that COVID-19 rates may be higher than the numbers being reported. Despite these facilities having higher rates of COVID-19 outbreaks, correctional facility workers and policymakers have not firmly vocalized this phenomenon.

It is also necessary to consider the demographic makeup of these facilities. African American and Mexican American communities have been more impacted by COVID-19 outbreaks as both communities experience higher rates of incarceration and arrest.132 In addition, these groups have historically been more distrustful of the U.S. healthcare system due to medical racism and unethical public health practices from the past (i.e. Tuskegee Experiments, Forced Prison Sterilizations).133

129

Page v. United States, 254 A. Supp. 1133, 1134, 1135, 1137, 1138 (D.C. 2021).

Domenico Cucinotta & Maurizio Vanelli, WHO Declares COVID-19 a Pandemic, ACTA BIOMEDICA (Mar. 19, 2020), https://doi.org/10.23750/abm.v91i1.9397.

131 Id. at 1.

132 Eric Reinhart, MD & Daniel Chen, JD, PhD, Association of Jail Decarceration and Anticontagion Policies With COVID-19 Case Growth Rates in US Counties, JAMA NETWORK (Sept. 2, 2021), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2783680.

133 Ayah Nuriddin et al., Reckoning with histories of medical racism and violence in the USA, (Oct. 3, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)32032-8/fulltext.

130

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II.

FINDINGS

Decarceration is effective in preserving the public health and safety of individuals within U.S. correctional facilities and its surrounding areas. There is ample evidence to suggest that decarceration would decrease the spread of COVID-19 based on 1605 U.S. counties examined by cohort studies from JAMA, a peer-reviewed medical journal.134 Decarceration would allow Inmates to live in environmental conditions with less exposure to COVID-19 if, at all possible, inmates are allowed to leave to isolated areas outside of correctional facilities or correctional workers enforce protocols of reducing inmates in facilities.135 However, correctional workers are not always required to implement decarceration as a means of reducing the spread of COVID-19 in correctional facilities. Other strategies outside of decarceration in facilities have not been proven to be as effective. Facilities with protocols that do not involve decarceration are less likely to reduce COVID-19 transmission. In fact, facilities that permitted people to separate from each other and revoke facility visits were effective in reducing people from getting COVID-19 in nursing homes (7.3%), prisons, (1.2%), and schools (4.3%). Decarceration has already been implemented in counties with an above-median population of Black residents. Overall, reducing the spread of COVID-19 in counties is possible through inmate isolation and shorter sentences in correctional facilities. Inmates and correctional workers have contributed to the increase of COVID-19 rates in numerous counties nationwide.136 III.

MEANING

Anti-contagion policies would allow decarceration as a strategy to reduce outbreaks in correctional facilities and its surrounding areas. Sentencing individuals to 3-5 days in jail will increase their exposure to COVID-19 and impact their ability to pay for their property expenses, the potential to lose their job, and be turned away for seeking shelter. Prosecutors have the power to overestimate detention for individuals by permitting consent to release many individuals at initial court appearances and reduce their requests for detention at initial appearances, which can be achieved without affecting public safety. Based on empirical findings from pretrial risk assessments, a metric that Judges and prosecutors in DC frequently depend on to determine decisions for detainment, 92% of individuals who were most likely able to commit a violent offense were not rearrested for a violent crime upon release.137 The DC pretrial statute138 allows judges and prosecutors to detain individuals when it is not necessary. By allowing them to determine causal factors that lead to detention in the instance that individuals impose dangerous qualities in the community. People who have foreseeable circumstances of committing physical harm to someone else would, by no means, seek an alternative to detention. The DC pretrial statute raises two problems for the U.S. criminal justice 134

Id. at 5.

Guidance for reducing jail populations to mitigate the impact of COVID-19 in Washington, D.C., VERA INSTITUTE OF JUSTICE (July, 7, 2020), https://www.vera.org/downloads/publications/coronavirus-guidance-reducingjail-populations-washington-dc.pdf. https://www.vera.org/downloads/publications/coronavirus-guidance-reducingjail-populations-washington-dc.pdf.

136 Id. 137 Id. at 5.

138 Detention prior to trial § 23–1322(a), D.C. Code § 23-1322 (1981).

135

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system. First, there is an unclear criterion for any accused behavior that can result from allegations of non-threatening acts that are not a danger to anyone’s physical safety. Second, there is the potential for judges and prosecutors to have the power to predict conduct in scenarios that have been too complex to predict by empirical information. These causal effects have a strong impact on the U.S. criminal justice system, as DC detains 56% of individuals charged with any felony, regardless of the low likelihood that an individual would be rearrested for a violent crime upon release. Judges and prosecutors can adopt detention when the case’s facts determine that the individual is a threat to someone else.139

IV.

SANTA CLARA COUNTY JAILS

Reports of 127 Santa Clara County jail detainees who contracted COVID-19 were found in Jan. 2021. This happened 9 months after the Santa Clara County Dept. of Public Health made the first Health Order protocols to reduce outbreaks and mitigate contamination. Santa Clara County jail administrators did not have plans to mitigate the risks of COVID-19, which indirectly caused outbreaks and the lack of display interest in changing an outcome to manage the current crisis and prevent future outbreaks. Even prior to the pandemic, inmates had higher risks of getting viruses compared to the general public. Inmates are in an isolated setting that speeds up the spread of viruses and they endure the inhumane treatment of being captive by federal orders.140 Inmates have a higher likelihood of getting COVID-19 compared to the general U.S. population. Inmates’ family members had been concerned since the start of a COVID-19 outbreak in summer 2020. Santa Clara County policymakers had received numerous phone calls, letters, and documents from inmates’ family members. Inmates’ family members had common concerns, which include the neglect of inmates being treated for COVID-19, incompetent correctional workers who disregard public health measures, and the lack of cleaning supplies.

V.

DISREGARD FACILITIES

FOR

HEALTH

AND

SAFETY

IN

CORRECTIONAL

Correctional facilities have shown every measure that has been found to be viable in effectively making jail administrators implement organizational protocols. These protocols have administered health and safety measures through people’s grievances, strikes, and medical requests. Families and supporting community advocacy groups have hosted public demonstrations with local and national media attention, held meetings with the Sheriff’s Dep’t., and found their way to county leaders who are the head of the Santa Clara County Dep’t. of Public Health. Such efforts, ultimately, have not resulted in needed change within the jails, as is evidenced through the repeated COVID-19 outbreaks. After initial reports of conditions inside the jail were 139

Id. at 5.

Caged in COVID — 2021 Report: Health Crisis in the Santa Clara County Jails, SAN JOSE STATE UNIVERSITY (Jan. 11, 2021), https://www.sjsu.edu/hri/docs/Caged%20In%20Covid%20__%202021%20Report_%20Health%20Crisis%20in%20 Santa%20Clara%20County%20Jails.pdf.

140

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communicated to the County’s Dept. of Public Health, there were incidents of the detainees being denied the right to shower and correctional officers mocking inmates for flagging violations of safety protocols.141 Inmates’ families have called physicians specializing in public health to perform a jail inspection on Apr. 2020. There was no consideration for correctional workers to change their attitudes towards adhering to public health measures. Prior to Dec. 2020, a Mercury News article exposed the behaviors of correctional workers. The specified correctional workers have posted photos of themselves willfully behaving in a way that would spread the infection by means of partying, being in close contact with others, and swapping drinks. Concerned families would email jail administration about the stuff they were hearing from loved ones inside of the facility.

Administrators would reassure the family that all actions had been taken to alleviate the inmates’ health. The administrative efforts were allegedly not enough to confront the lack of accountability for staff nor the increased COVID-19 infectious rates at correctional facilities. Communicating with administrators did not resolve the concerns.142 In response to the lack of regard for inmates’ health, families and advocates decided to gather information within correctional facilities to advocate for the Santa Clara County inmates’ health. Families and advocates compiled survey responses and testimonials from inmates and their families to amplify their statements inside of correctional facilities. The qualitative data collected from inmates and their families pushed for better public health mandates in favor of inmates. The mandate urged for more structural and significant interventions by people outside of the Sheriff’s Administration to meet public health standards for inmates, illustrate medical necessities, and display fundamental need for more inmate releases and a plan to prevent more people from going to jail and prison. There must be a holistic and strict intervention that requires action from numerous County workers to use their respective authority.

The following has been recommended to Santa Clara County: 1. The Santa Clara Cty. Dep’t. of Public Health and Custody Health must distribute and make health and medical treatments standards for inmates.

2. The Santa Clara Cty. Presiding Judge must plan for the court to facilitate immediate releases and promote decarceration processes.

3. The Santa Clara Cty. DA Office must work with the Public Defender’s Office to speed up the releases for inmates.

4. Police agencies in Santa Clara County must use cite and release options, rather than force people into confinement in the jail pre-trial.

5. The Santa Clara County Re-Entry Center must prepare to support people out of jail.143 The Santa Clara County Sheriff’s Dep’t. must respond to the needs and demands of inmates, their supporting communities, and County officials who are working to prevent the spread of COVID-19 and save lives. The survey question urged a comprehensive look at the ways the County Jails were responding to or ignoring the safety guidelines necessary for protecting everyone inside from COVID-19.

141

Id. Id. at 13.

143 Id. at 13.

142

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The most recent dataset that San Jose State University gathered presents the following information: Santa Clara County’s incarceration rate during COVID-19 has shown that 97% of people aren’t able to stay 6 feet apart in correctional facilities, and 85% of people said jail staff do not consistently wear masks. “Out of 8-12 officers about 3 or 4 would wear their masks constantly.

The rest would just wear them around their neck. They would only put a mask on if there was an incident.” 100% said jail staff rotate between units. 55% of people either sought for their own COVID-19 results or did not receive results from a COVID-19 test.144 Based on San Jose State University’s findings, not all correctional workers have followed COVID-19 protocols. If COVID19 regulations are publicly enforced in correctional facilities, why should correctional workers be treated any differently from inmates? Neglecting COVID-19 protocols comes with the dangerous cost of harming inmates’ health and safety.

VI.

THE BAY AREA’S CRIMINAL JUSTICE SYSTEM

Due to the Omicron COVID-19 variant, infectious rates have increased in the Bay Area’s two largest jails. Santa Clara County has the Bay Area’s largest jail population with approximately 2,400 people in custody. Santa Clara County has been persistently fluctuating from higher proportions to mid-level proportions as of Mar. 20, 2022.145 In Alameda County, Santa Rita Jail has a jail population of 2,230 people and there have been 220 reported infections.

Within the Santa Rita Jail, there were 89% of asymptomatic cases in Dec. 25, 2021. Contra Costa County reported 108 in-custody infections at its jails through Monday, which is four times larger than the figure recorded a week before. The sheriff’s office reported that the most in-custody jail infections were in San Francisco.

The Omicron variant has forced officials to pause jail visitation and other in-person events in San Mateo County. The sheriff’s office did not immediately respond to data requests of inmates on COVID-19 jail cases. Through Jan. 6, there were at least 122 active COVID-19 cases among sheriff’s office employees, which includes correctional deputies and staff in Santa Clara County.

That number is three times higher than how it has been recorded on Jan. 15, 2021. The county did not provide a breakdown of exactly how many infected employees work in the jails. The sheriff’s office said correctional staff are subject to daily testing. Kelly said the Alameda County Sheriff’s Office has reported more than 100 of the agency’s employees as being actively infected with COVID-19, with 40 of those cases resurfacing. A Contra Costa County official claimed that approximately 36 correctional staff employees have been infected with COVID-19.146

VII.

LOS ANGELES COUNTY’S CRIMINAL JUSTICE SYSTEM

144

Id. at 13.

Robert Salonga, More Big COVID-19 surges at Bay Area Jails, Hitting Inmates and Correctional Staff, THE MERCURY NEWS (Jan. 12, 2022), https://www.mercurynews.com/2022/01/11/more-big-covid-19-surges-at-bay-areajails-hitting-inmates-and-correctional-staff/.

146 Id. 145

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COVID-19 cases have increased due to the Omicron variant in mid-Jan. 2022, though these case numbers may be fluctuating in an upwards and downwards trend.147 Gov. Gavin Newsom lifted indoor mask mandates in California in Mar. 2022. However, preventive measures like separating individuals and containing viruses is not always feasible within the framework of a criminal justice system. In particular, LA County is known for having the largest police force and high incarceration rates; by nature, arrests entail individuals being handcuffed and held in tight spaces with other people. Not everyone is able to cover their faces to prevent the spread of germs.

The decision for jail and prison sentencing in court could expose anyone inside the courtroom to COVID-19. The conditions of arrest for sentencing would include a monetary fine, probation, and/or federal prison incarceration.148 Sentencing in courtrooms can increase the spread of COVID-19 when there is an ongoing exposure to COVID-19 in the general U.S. population, there are community outbreaks within the surrounding area of courtrooms, and there are individuals inside of the courtroom who may be infectious and asymptomatic.149 The likelihood for inmates to get COVID-19 is higher than the rest of the population given that thousands of people are in proximity to each other. In addition, there are hundreds of workers who enter and leave the correctional facilities on a daily basis. Community-based service workers have lacked the resources and personal protective equipment (PPE) to safely help formerly incarcerated individuals with readmission into our society. Los Angeles already forgoes some critical steps to restrict arrests and incarcerated individuals. Although, it is imperative for correctional workers to act quickly with enforcing decarceration to reduce COVID-19 rates. Acting passively on decarceration would undermine public health protocols, which could worsen the health outcomes for people inside of correctional facilities and its surrounding areas.

VIII. FEDERAL RECOMMENDATIONS FOR LOS ANGELES’ CRIMINAL JUSTICE SYSTEM In light of the data that has emerged during the pandemic, I argue for the following recommendations. First, arresting individuals should be reduced to minimize COVID-19 exposure rates and COVID-19 case rates. Additionally, it is necessary to limit the flow of people entering and exiting Los Angeles County jails, police cars, and local lockups, while directives to officers should be clear, expansive, and public. For example, any individual charged with a non-threatening crime must have shorter sentences based on the severity of the crime. This could be presented as someone who screamed to deceive people into being in a dangerous situation. Another example would be sentencing less jail and prison terms. Arrests increase the likelihood of contracting COVID-19 transmission due to prolonged exposure, especially in the instance of transporting inmates and handcuffing individuals.

147

Tracking Coronavirus in California: Latest Map and Case Count, NEW YORK TIMES (Mar. 25, 2022), https://www.google.com/search?q=los+angeles+covid+march+2022&oq=los+angeles+covid+march+2022&aqs=ch rome..69i57j33i160j33i299.3531j0j7&sourceid=chrome&ie=UTF-8.

148 Criminal Procedures, U.S. DEP’T OF JUST. (Apr. 26, 2021), https://www.justice.gov/usao-mn/criminalprocedures.

149 Epidemics and the California Courts, NATIONAL CENTER FOR STATE CTS. (Mar. 26, 2020), https://www.ncsc.org/__data/assets/pdf_file/0028/19387/redacted_epidemics_and_the_california_courts_handbook. pdf.

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Each arrest causes an enhanced risk of transmission of COVID-19 because of the close and prolonged physical contact during handcuffing and transport. Booking increases the likelihood of exposure among not only detained people, but also officers. By implementing these changes, law enforcement officers have the power to minimize interactions with people and reserve resources for the most serious cases.

Placing a restriction on arrests for offenses that do not involve physical harm or direct threats to a person. There is a continuous notion for people to be booked into jail for low-level charges that include the possession of a controlled substance and the revocation of a driver’s license. Suspending enforcement of low-risk incidents (Ex: failure to appear and traffic stops) can help the police maintain its control to respond to critical incidents and community health needs.

For every other offense, it is important to create a policy of presumptive release as early as possible, unless the person poses an immediate risk to another person’s personal safety.

The Los Angeles’ Sheriff’s Dept. (LASD) and the Los Angeles Police Dept. (LAPD) have already taken some steps to decrease arrest rates in response to coronavirus. Both departments are encouraging increased use of cite and release, and LASD has reported reducing the jail population by 1,700 people. However, clear diversion directives are key to precipitously decreasing the volume of arrests and bookings. This will ultimately promote public health and avoid the dangerous practice of officers working with symptoms of illness, engaging in long shifts interacting with the community, and adding to the risks of exposure. Identifying groups of people in jail should be released as soon as possible, especially the inmates who are most vulnerable from underlying medical conditions. Jails and courts are vulnerable to the spread of COVID-19.

Prosecutors, defenders, and judges hold immense power to prioritize cases to place on court calendars, reduce the jail population, and protect people in the community and courts from unnecessary exposure to coronavirus. Given the urgency of this crisis, it is imperative for each entity to create broad directives with minimal exceptions to support release and limit case-by-case decision making to only the most serious cases involving immediate and identifiable risks of physical harm to another person. Finally, making a protocol to promote inmates’ release from jail is imperative for encouraging public health. Community-based systems of care must be amplified through the provision of protective gear and increased funding. People reentering the community from jail should know how to protect themselves and others from COVID-19, along with having adequate information about government restrictions on reentering public life.150 A. Non-institutional Settings As of Feb. 15, 2022, the California Department of Corrections and Rehabilitation (CDCR) and California Correctional Health Care Services (CCHCS) non-institutional work locations have updated facial covering requirements. Non-institutional leadership must continue to control compliant staff with facial covering measures. Supervisors and managers must utilize a disciplinary process described in the California Code of Regulations, Title 15; Causes for Corrective Action, and Causes for Adverse Action. This attempts to address staff who fail to comply with these directives.151

150

Id. The most significant criminal justice policy changes from the COVID-19 pandemic, PRISON POLICY INITIATIVE (Feb. 14, 2022), https://www.prisonpolicy.org/virus/virusresponse.html.

151

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B. State and Federal Orders California state courts reviewed approximately 3,500 people who had been identified for early release from prisons in response to COVID-19 in Jun. 2020. California state courts found that the prison failed to release some of the most vulnerable people, including those serving long sentences and those who had been in prison for decades in Oct. 2020. Prison officials decided who would leave San Quentin and whether they would be transferred or released. A California Superior Court judge ordered that the Orange County jail population must be cut in half, after ruling that the sheriff had failed to reduce the population enough to allow appropriate social distancing in Dec. 2020.

C. Court Orders As of Apr. 6, 2020, California set a statewide emergency bail schedule that reduced bail to $0 for most misdemeanors and some low-level felony offenses, causing California jail populations to drop. California state prisons have decreased in its prison population by 18% in comparison to the national prison population decrease of 14%.152 Jail populations in Los Angeles County and Sacramento County had decreased at less than one half of its population and Orange County’s jail population decreased by almost 45% within the same time by the end of May 2020. The judicial council voted to end this statewide emergency bail schedule in Jun. 2020, but 31 counties decided to keep the emergency bail schedule in place. Inmate case studies from the COVID-19 pandemic will be evaluated in the following passages.153 The first case illustrated is from USA v. Rufus.154 Mr. Williams is an African American inmate at Coyote Ridge with underlying medical conditions that include Type 2 Diabetes and Hypertension. Williams would be more likely to face harsher effects of COVID-19 if he tests positive for the virus. Robert Rufus Williams was denied a shorter release date because of his charges of burglary, robbery, and life-threatening assault in Washington. Mr. Williams was found guilty of aggravated identity theft under 18 U.S.C. § 1028A A1 and bank fraud effective under 18 U.S.C. § 1344 on May 1, 2019.

The Court declared Mr. Williams with 54 months of imprisonment, 3 years of supervised release, restitution, and a special evaluation. The Court’s judgment was amended twice effective on July 16, 2019. Mr. Williams’ alternative sentence was not considered, and the state did not object to any motion of release for Mr. Williams. The Court established an order for Mr. Williams to pay reparations worth $27,311.35 and stay as an inmate at the Federal Correctional Institution at Fort Dix in Fort Dix, New Jersey. “Extraordinary and compelling reasons” for release are methods to encourage decarceration.155 What makes it permissible to order shorter release dates for inmates with pre-existing medical conditions and notorious criminal backgrounds in correctional facilities?

152

Wendy Sawyer, New data: The changes in prisons, jails, probation, and parole in the first year of the pandemic, PRISON POLICY INITIATIVE (Jan. 11, 2022), https://www.prisonpolicy.org/blog/2022/01/11/bjs_update/.

153 Id. at 22.

154 USA v. Rufus, 15. Wash App. 2d 647 (Ct. App. 2020) 155 U.S.S.C. amend. DCCXCIX §1B1.13.

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The court has considered altering imprisonment terms on compassionate releases within the two given circumstances: (a) "upon motion of the Director of the Bureau of Prisons;" or (b) "upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, ..."156 The court would only make it permissible to changes in scenarios where there must be changes to the record of “extraordinary and compelling reasons” or that the individual is at least 70 years of age with a minimum of 30 years in prison and an assurance that the Dir. of the Bureau of Prisons decides that an individual does not impose a threat to the community.157 The Court had decided to be pursuant in an applicable policy statement for passionate release in accordance with the U.S Sentencing Guidelines (U.S.S.G).158 Mr. Williams had presented “extraordinary and compelling reasons” that the Court deemed as acceptable for having a sentence reduction due to his underlying conditions of asthma, diabetes, hypertension, and other outcomes that would put him at a heightened risk of getting COVID-19. Mr. Williams would not have the opportunity to protect his physical health in a confined space, nor properly protect himself against an infectious respiratory disease while being an inmate. This, in itself, is a reasonable stance for decision makers to give Mr. Williams a shorter sentence.

The state government did not agree that this reason was not enough to satisfy the requirements from the U.S.S.G.159 However, the court argued that this was pursuant on the finding that "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."160 Regulations have accounted for all of these foreseeable factors and the Court to conclude on the decision for immediate release161 as the motion has met the criteria for passionate release.162 The court still put the judgment in effect for Mr. Williams to have a supervised release. Mr. Williams must put himself in isolation for approximately 14 days upon the arrival of his house and contact his physician to determine eligibility for COVID-19 testing.

Mr. Williams possesses a notorious criminal record, and his underlying medical conditions were not easily acceptable for release, but this was not the case for Mr. Rodriguez.

In USA v. Rodriguez,163 Jeremy Rodriguez requested the court to reduce his sentence.

Rodriguez is a Mexican American inmate at a federal detention facility in Ohio that got charged with drug-related offenses. Mr. Rodriguez's criminal history consists of multiple convictions for drug dealing and firearm offenses. Rodriguez was located in a low-security correctional facility and he has made a plan for returning back to the public. He desires to isolate in his area of residency and was determined to not be a threat to anyone else. Mr. Rodriguez’s firearm offenses were disclosed to the police when they performed a search warrant at his house.

Despite Rodriguez being guilty of firearm offenses and drug-related offenses, there has been no evidence to suggest that he used any gun to impose a threat onto anyone during his drug transactions. His criminal history does not describe him as having bad conduct at his federal 156

18 U.S.C. 18 U.S.C. § 3559(c) 158 U.S.S.G § 1B1.13 159 Id. at 21.

160 Id. 161 18 U.S.C. § 3553(a) 162 18 U.S.C. § 3582(c)(1)(A) 163 USA v. Rodriguez, 451 F. Supp. 3d 392 (Ct. App. 2020) 157

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detention facility.164 Since Mr. Rodriguez has committed victimless crimes and presented himself with good conduct, will the court grant inmates to have shorter sentences based on their conduct in correctional facilities?

In accordance with the U.S.C., it was resourceful for the court to determine a sentence reduction only if "[t]he defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)."165 The court decided that Rodriguez has shown compelling evidence and extraordinary reasons to reduce his prison sentence. He suffers from underlying health conditions that consider him as a vulnerable individual to COVID-19. These conditions include Diabetes, High Blood Pressure, and Liver Issues. The higher risk of staying in an isolated space with many individuals would put Rodriguez in a bad position to protect his personal health. Since Rodriguez would not be able to seek medical care, he would struggle with receiving treatment for his medical conditions. In addition, Rodriguez’ release date from prison is long, so risking his life for getting the virus would not be worth the cost for him to make up for his time committing victimless crimes. Since Mr. Rodriguez has served for most of his minimum sentence, and is close to being released in the following year and a half, it would be reasonable to grant his motion to reduce his sentence and lessen disparities within inmates. Mr. Rodriguez has a long sentence of 17 years, which would make him reflect on his misconduct from his crimes and strive to respect the law. The likelihood of Mr. Rodriguez committing a crime is minimal as his own health is at risk. Therefore, Rodriguez has been qualified as a good candidate for release during the COVID-19 pandemic due to his underlying medical conditions and the length of his release.166 Mr. Rodriguez was able to be released based on his lesser likelihood of committing a crime, but is this condition the same for an inmate with a higher risk of getting COVID-19 and a potential likelihood to commit crimes upon readmission to society?

In USA v. Ryan,167 Nolan Ryan has been charged with accounts of aggravated identity theft and bank fraud. In Feb. 2020, the court ordered that Nolan Ryan, the Defendant, would have a detained pending trial due to the uncertainty of his circumstances upon public safety and court appearances. The United States declared that the pretrial release would be in parallel with a regulation that has already considered the "weigh in favor of release" due to the "COVID-19 pandemic and [Defendant's] particular vulnerability to it."168 The extent of the parties' analysis to support their request for Defendant's release is not highly probable in determining his release. As this certainly does practice the release of compassion, is this enough for Ryan’s case to overcome the initial reasons why the court ordered his detainment under the Bail Reform Act? The detainees pending trial should be able to be released due to public health reasons that arise from the COVID-19 pandemic.169 Ryan has presented himself with asthma, a respiratory disease, and the court has determined his diagnosis as unnecessary and insufficient for pretrial release during the COVID-19 pandemic. The court denied Ryan’s request for pretrial release without the consideration of his conviction or sentencing. As the COVID-19 pandemic continued to infectiously spread since Mar. 2020, there have been complaints from Ryan about being at a higher risk of getting COVID-19 due to his asthma. The pandemic had started to stir legitimate 164

Id. at 36.

U.S.S.G. § 1B1.13(2).

166 Id. at 30.

167 USA v. Ryan, 445 F. Supp. 3d 707 (Ct. App. 2020) 168 18 U.S.C. § 3142(g) 169 18 U.S.C. § 3142 165

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concerns of an infectious COVID-19 outbreak in the federal prison system. There must be other factors to justify that Ryan’s severity from his condition will be impacted under confinement.170 In accordance with 18 U.S.C.,171 the United States has laid forth Ryan’s pretrial release because “[t]he COVID-19 pandemic cannot be the sole basis for releasing a defendant from custody pending trial; the Court must still consider the Section 3142(g) factors."172 The court had ruled that being dependent solely "on the issue whether there are conditions of release that will reasonably assure the appearance of [Defendant] as required and the safety of any other person and the community."173 The Bail Reform Act has authorized for a "temporary release" pending trial into "the custody of a United States marshal or another appropriate person" for "compelling reasons" only.174 Based on this interpretation of the court, Nolan Ryan had been authorized for a temporary release on the basis of The Bail Reform Act. Prolonging the stay of inmates who possess underlying medical conditions in enclosed spaces is a risky circumstance that can be hazardous for their health outcomes. As for correctional facilities, there is still potential for COVID-19 outbreaks as our society is still in an ongoing pandemic. In fact, California has the biggest population in the nation and there have been numerous cases of COVID-19 outbreaks in correctional facilities.

California’s correctional facilities continue to have massive COVID-19 outbreaks. There have been numerous urges for better air ventilation systems in correctional facilities and reinforcement for physical distancing. Inmates have been neglected in their needs for providing a better healthcare infrastructure.175 For example, San Diego County detainees are currently dying and suffering in San Diego County’s jails because of the incredibly deadly and hazardous practices, conditions, and policies that have been continuously permissible for several years.

While the death rate in San Diego County’s jails have exponentially increased at higher rates nationally at every year, it has expanded in the midst of the COVID-19 pandemic. 458 inmates per 100,00 people have been found dead from the harsh conditions of living in jails. San Diego County’s 2021 death rate tripled in comparison to the national rate in jails.176 Furthermore, the custody staff are the only ones that make the final decisions for health care services that are provided to inmates. The decisions are not dependent on any health professional whatsoever. Individuals at San Diego County’s jails do not receive convenient treatments and they are not sufficiently screened for medical needs. For instance, contractors and jail staff did not guarantee that Michael Wilson would get his life-saving heart medication in 2019, irrespective of what a judge specifically ordered for them to do. Michael Wilson died in jail as a result of the careless act to not provide him his life-saving heart medication. When inmates do not receive their appropriate treatment upon their visit to a jail, they experience a higher likelihood of suffering, death, exacerbated health conditions, and prolonged pain.177

170

Id. at 39.

Id. at 34.

172 Id. at 35.

173 Id. at 23.

174 Id. at 34.

175 U.S. Dist. Ct., Joint Case Management Statement, (2022-02-14). https://rbgg.com/wp-content/uploads/2022-0214-Case-Management-Statement.pdf.

176 Dunsmore v. San Diego Cnty., S.D. Cal. Ct. App. (2021) 177 Id. 171

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Through practice and policy measures, the Sheriff’s Dep’t. failed to prevent and address the custody staff’s misconduct against inmates. The Sheriff’s Dep’t. does not adequately train custody staff on how to vocalize and avoid misconduct caused by correctional facility workers.

Custody staff frequently commit misconduct that directly harms inmates. This misconduct can take the form of lockdowns or other tactics that deprive incarcerated people of programs and privileges. For example, custody staff are able to punish people to the fullest extent, which would include individuals with mental health disabilities. The custody staff would not align with any formal discipline system, which would allow them to refuse mentally disabled inmates access to showers, meals, professional visits, and court visits. This act is often performed pursuant to a widely enforced, yet unofficial, “bypass” by which an individual is denied access to leaving their cell and being placed on a self-lockdown. The “bypass” system is not established nor written in any policy. However, the “bypass” system is a prolonged practice controlled by a few custody staff where someone could be placed as a “bypass” for as many months that are dependent on the staff.

Being a “bypass” would mean that an inmate would not have a cellmate and their door is not permissible to be open for a dayroom and programs within the facility.178 Arrests LAPD encountered a decrease in arrests by issuing claims, delaying arrests, and using releases.

Within Los Angeles County, there have been reduced arrests from an average of 300 per day to approximately 60 per day from Mar. 2020 to Mar. 2021.179 Sentence statuses have been as low as 22% to 44% as of Mar. 2022.180 Reducing in-person check-ins The California Department of Adult Parole Operations has reduced the number of required checkins to protect workers and people in the surrounding area by suspending office visits for people with chronic medical conditions and anyone above the age of 65.

Eliminating probation and parole fees California revoked 23 criminal legal system fees spent on mandatory supervision, electronic monitoring programs, and probation.181 IX.

THE U.S. FEDERAL GOVERNMENT

The Vera Institute of Justice has suggested the Biden-Harris Administration to incentivize authorities that manage state and local detention centers, jails, and prisons to adopt policies on decarceration. The COVID-19 in Corrections Data Transparency Act will hold state and local systems accountable for testing and infection numbers, spread, and outcomes. Additionally, the federal government can issue guidance and give assistance through the Office of Justice Programs to states and localities looking to effectively combat COVID-19 for inmates.

178

Id. at 41.

Id. at 19.

180 See Correctional Services Daily Briefing, 032322 Briefing, Los Angeles County Sheriff’s Dept. (Mar. 23, 2022), https://lasd.org/wp-content/uploads/2022/03/Transparency_Custody_Division_Daily_Briefing_032322.pdf.

181 Id. at 19.

179

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Recommendation 1: Release people from BOP, ICE, and ORR custody. Safely releasing people to ease overcrowding and allow for social distancing will mitigate COVID-19 exposure risk. The administration must have a goal to reduce the amount of people in custody by a minimum of 25% within 100 days. Local jails have done this from Mar. and Jun. 2 upon releasing enough people to lower the national jail population by a quarter in that time. The following has been accounted for: “1. Release people from BOP custody who are within one year of the end of their sentences.

2. Use compassionate release for people aged 55 and older and those who are especially vulnerable to COVID-19.

3. Release people held in immigration detention, prioritizing those with vulnerabilities.

4. Prioritize swift reunification of children in ORR custody with family members and, at a minimum, ensure they are placed in smaller and transitional foster care settings.

5. Issue more clemencies and commutations.

6. Direct federal prosecutors and U.S. Department of Homeland Security attorneys do not seek pretrial or immigration detention unless there is a credible public safety risk that justifies it.” 182 Recommendation 2: Maintain better preventive measures, containment, and testing. Public health officials agree that the most effective strategy in combating COVID-19’s spread is the use of PPE, testing, and contact tracing.

At least $200 million must be allocated responsibly and should comply with these following procedures based on the Consistent with the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act: “1. Provide all people who work and are incarcerated in federal correctional settings with PPE in accordance with Centers for Disease Control and Prevention guidance.

2. End transfers of incarcerated people between BOP facilities and within the ICE system.

3. Mandate mass testing at key intervals including, at a minimum, on admission to the facility and before release, as well as immediately when any case of COVID-19 is suspected.

4. Institute a contact tracing policy behind bars.

5. Align facility design to meet public health recommendations by using single cells when possible and maintaining at least 150 square feet of personal space per person.”183 Recommendation 3: Reorganize the correctional operations that encourage the social distancing preventive measures to COVID-19 based on lockdown measures that include the prohibition of inperson visits with family members and loved ones, requiring people to stay in their cells, and limiting the mobility of people inside of correctional facilities. The correctional workers can give free tablets and calls to replace in-person visits, change the strategies and schedules of programs, and enforce the limitation of being near people.

182

Recommendations to the Biden-Harris Coronavirus Task Force on Immediate Steps to Combat COVID-19 Behind Bars, VERA INSTITUTE OF JUSTICE (Dec. 2, 2020), https://www.vera.org/downloads/publications/recommendations-to-biden-harris-coronavirus-task-force-covid-19behind-bars.pdf.

183 Id.

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The Biden-Harris Administration can facilitate and encourage authorities that control the state and local detention centers, jails, and prisons to adopt the following recommendations: “1. Urge Congress to pass the HEROES Act, including an allocation of $300 million in Byrne Justice Assistance and another $600 million in Pandemic Justice Response Act grants.

2. Urge Congress to pass the COVID-19 in Corrections Data Transparency Act to hold state and local systems accountable for testing and infection numbers, spread, and outcomes.

3. Issue guidance and provide assistance and oversight through the Office of Justice Programs to states and localities looking to effectively combat COVID-19 behind bars. Resistance to these reforms is often couched in public safety and budgetary concerns. However, a September 2020 study of jail and prison early release policies during COVID-19 demonstrates that we can maintain public safety while prioritizing public health. 10 We urge the COVID-19 Task Force to consider these recommendations and the administration to take action immediately. The costs—human, social, and fiscal—of inaction are too great to ignore.”184 X.

CONCLUSION

Correctional facilities must consider that inmates, correctional facility workers, and the surrounding community are large contributors to the nationwide spread of COVID-19.

Decarceration is a necessary attribute in reducing COVID-19 rates in correctional facilities and one factor in stopping the spread of COVID-19 nationwide. Facilities that decrease their inmate capacity have been found to have lower rates of COVID-19. Based on California state and federal orders enforced by the court and the government, there must be attempts to decrease the spread of COVID-19 in correctional facilities to preserve the public health and safety of individuals in correctional facilities. The examples illustrated through Santa Clara County, the Bay Area’s Criminal Justice System, Los Angeles County, the District of Columbia, and San Diego County have shown that correctional facilities have the potential to reduce jail sentences during the COVID-19 pandemic. Santa Clara County took precautionary measures and became aware of potential outbreaks within correctional facilities.

The Bay Area’s Criminal Justice System had released inmates with pre-existing medical conditions and attempted to stop the spread of COVID-19 inside of correctional facilities. Los Angeles County has the highest number of incarcerated people nationwide, yet the county has enacted effective measures to reduce the spread of COVID-19 in correctional facilities, and staff members have been regulated to reinforce the measures in place. The District of Columbia allowed inmates with notorious criminal convictions to be released upon the motion that inmates’ medical conditions would be exacerbated by COVID-19. San Diego County has notoriously tripled in its cases for inmates with COVID-19 compared to the general U.S. population. San Diego County jail detainees, and the surrounding community, criticize the county jails for having careless correctional facility workers. Choosing not to decarcerate would result in worse health outcomes for jail, detention center, and prison populations. African Americans and Mexican Americans are disproportionately arrested and incarcerated at higher rates than the general U.S. population. They are also at higher risks of getting COVID-19 in our society at large, which would lead to more health disparities and continued distrust in the public 184

Id.

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health system. The neglect of public health infrastructure within correctional facilities would amount to a higher public distrust in the U.S. Criminal Justice System. Decarceration has been proven to be the most effective approach in entailing better health outcomes and safety measures for inmates, correctional workers, and surrounding communities. Therefore, the U.S. Criminal Justice System can maintain its integrity and gain more public trust by prioritizing the needs of inmates’ health and safety through decarceration.

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The Future of the Vaccine Mandate: An Analysis of the History and Case Law Relevant to OSHA’s Emergency Temporary Standard Wesley Carter Edited by Westley Hall

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a mandate-or-test Emergency Temporary Standard requiring workers at businesses with more than 100 employees to be fully vaccinated or submit to weekly testing by January 4, 2022. Within hours, dozens of litigants had filed actions in federal court disputing the mandate. In the intervening weeks, these disputes were consolidated and, via a lottery-selection process, transferred to the Sixth Circuit Court of Appeals where they await further action. This high-profile litigation once again places the national spotlight on a fundamental tension between federal regulations and the rights of private companies. Although the vaccinemandate line of cases implicates a litany of statutory and Constitutional issues from the Administrative Procedure Act to the 10th Amendment itself, this paper analyzes the issue from the perspective of federal employment and regulatory law. This analysis includes a discussion of the status of the once-abandoned nondelegation doctrine which seems poised to make a comeback in the OSHA case with farreaching consequences for federal regulations in the workplace and beyond.

In the wake of Citizens United v. FEC, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Burwell v. Hobby Lobby, will the vaccine-mandate line of cases become the latest vehicle for the Roberts Court to curtail the reach of federal regulations and expand the rights of private business? In its broadest terms this paper examines the history and case law relevant to the vaccine mandate in an effort to illuminate the outlook for the OSHA case.

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I.

INTRODUCTION: PRELIMINARY LITIGATION

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a mandate-or-test Emergency Temporary Standard in response to the ongoing Covid-19 pandemic. Working with the Biden administration, OSHA’s mandate required workers at businesses with more than 100 employees to be fully vaccinated or submit to weekly testing by January 4, 2022. Within hours, dozens of litigants had filed actions in federal court disputing the mandate.185 Although standard procedure in such situations is for courts to wait until these disputes can be consolidated and transferred to a single court, the Fifth Circuit Court of appeals jumped at the opportunity to weigh in on the mandate.

Eight days after OSHA issued its Emergency Temporary Standard, on November 12th, the U.S. Court of Appeals for the Fifth Circuit surprised many legal observers by issuing an order staying the mandate, effectively barring OSHA from enforcing or otherwise implementing its ETS as planned.186 Although it is not uncommon for courts to issue stays when litigation is pending, the Fifth Circuit’s move struck many as premature by virtue of the fact that the case had not yet been consolidated and assigned to a court. The decision also raised accusations of partisanship from observers who noted that the Fifth Circuit had gone to great lengths to prevent a stay on Texas’ SB8 law restricting abortion rights, which many believe raises similar constitutional concerns as the vaccine mandate.187 Controversy aside, the Fifth Circuit’s stay did halt preparations for the mandate as the country waited for the case to be consolidated.

Once all cases in the vaccine-mandate line of litigation had been consolidated, a lotteryselection process determined that the conservative Sixth Circuit Court of Appeals would be assigned the case, to the chagrin of supporters of the OSHA mandate. Despite its reputation as a conservative court, one of the Sixth Circuit’s first acts upon receiving the case was to lift the Fifth Circuit’s stay on the ETS.188 Although the Fifth Circuit’s stay has now been lifted, its ruling provides a preview of how conservative-leaning justices are likely to view the case as it makes its way through the appellate process and potentially to the Supreme Court. This raises the question, what arguments swayed the Fifth Circuit to block OSHA’s Emergency Temporary Standard so quickly?

According to the Fifth Circuit’s 22-page ruling on the issue, it was the decision of the court that there were several reasons that the ETS ought to be enjoined.189 The first dealt with the administrative procedures required for OSHA to issue an Emergency Temporary Standard.

Under the Administrative Procedures Act, OSHA must demonstrate that the proposed regulation is vital to protect workers from a “grave danger” from “substances or agents determined to be toxic or physically harmful.” The Fifth Circuit denied OSHA’s claim that the Covid-19 185

Jack Healy & Lauren McCarthy. ‘See you in Court’: G.O.P. Governors Express Outrage and Vow to Fight Biden’s Vaccine Requirements, New York Times, (September 21, 2021) https://www.nytimes.com/2021/09/10/us/republicangovernors-mandate-reaction.html 186

BST Holdings, LLC v. Occupational Safety and Health Administration, No. 21-60845 (5th Cir. 2021)

187

Ian Millhiser, Are Biden’s New Vaccine Requirements Legal? VOX (Sep 11, 2021, 8:30am), https://www.vox.com/22666625/biden-vaccine-mandate-covid-19-supreme-court-osha-constitution-legal 188 189

Id. BST Holdings, LLC v. Occupational Safety and Health Administration, No. 21-60845 (5th Cir. 2021)

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pandemic meets this “grave danger” standard. In the court’s view, the virus does not threaten the lives of the majority of those who contract it, so it should not be considered a “toxic or physically harmful” agent and/or substance. Additionally, the court noted that the virus is widespread throughout the nation and world as a whole, which it deemed significant because the virus’ wide reach means it is not a workplace-specific danger.190 Thus, the first layer of the court’s analysis concluded that, in light of the administrate procedures that OSHA must follow to issue an emergency standard, the department failed to meet their burden to prove that the Covid19 situation is sufficient to warrant an Emergency Temporary Standard.

Moving on from its characterizations of the Covid-19 virus, the next aspect of the Emergency Temporary Standard with which the court took was the vaccination requirement.191 Interestingly, the court was concerned about both the overinclusiveness and underinclusiveness of the Emergency Temporary Standard. In terms of its overinclusiveness, the court criticized the Emergency Temporary Standard for defining the employees to which it applied based on the size of the company they worked for (companies with 100 employees or more) instead of by their individual level of danger. The degree of danger posed by Covid-19 varies greatly from individual to individual for reasons such as proximity to Covid-19 hotspots, membership in highrisk groups (elderly individuals, people with respiratory conditions, etc.), and other relevant medical details such as whether an individual has contracted Covid-19 before. Because the Emergency Temporary Standard distinguishes between employees based only on company size, the Fifth Circuit determined that OSHA’s Emergency Temporary Standard was overbroad for applying to workers in relatively low-risk situations while failing to cover workers with high-risk situations who belong to smaller companies.

In addition to these procedural criticisms of OSHA’s ETS, the Fifth Circuit also hinted at more fundamental constitutional issues concerning the non-delegation doctrine. In the following section, this paper will examine the constitutional questions raised in the OSHA case, providing an overview of the judicial history and case law to provide context for the current debate over OSHA’s ETS. Finally, I will use this case law to determine the likely outlook of the OSHA case.

II. RELEVANT HISTORY AND CASE LAW A. The Constitutionality of Vaccine Mandates Since the idea of mandating the vaccine began gaining traction in public discourse, critics have questioned the constitutionality of vaccine mandates. Despite the controversial nature of the topic, the case law regarding governments mandating vaccines is relatively clear. In the 1905 case Jacobsen v. Massachusetts, the Supreme Court ruled that a health board’s mandate that schoolchildren receive the smallpox vaccine passed constitutional muster. Chief Justice John Harland wrote in his decision, “The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint…there are manifold restraints to

190 191

Id. Id.

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which every person is necessarily subject for the common good.”192 Since 1905, this principle that, in certain situations, the common good can constitutionally be prioritized over individual freedom has passed the test of time. The court’s decision in Jacobsen v. Massachusetts still stands to this day, and many state and local governments mandate vaccines without any issues.

Although the Roberts court has looked comfortable overturning precedents in the past, legal scholars do not believe that Jacobsen v. Massachusetts is a likely target for this judicial activism.

When the Supreme Court heard the case Roman Catholic Diocese of Brooklyn v. Cuomo last year, Justice Gorsuch himself characterized Jacobson v. Massachusetts as a modest decision, noting that it “didn’t seek to depart from normal legal rules during a pandemic.”193 B. The Constitutionality of Emergency Federal Workplace Regulations Just because the constitutionality of vaccine mandates is unlikely to be a battleground in the impending litigation over OSHA’s Emergency Temporary Standard does not mean constitutional issues will not still be a deciding factor. The government in general may have the power to mandate vaccinations, but the precedent set in Jacobsen v. Massachusetts does not apply to every government actor. In this case, the Labor Department and the Occupational Safety and Health Administration are only empowered to act within the limits of the powers delegated to them by Congress. The terms of this delegation of power are laid out in the Occupational Safety and Health Act of 1970, which is the source of the “grave danger” standard referenced in the Fifth Circuits ruling.194 Of course, the Fifth Circuit was not awarded the OSHA case so their ruling is not the final say on the matter. As the case is litigated in the Sixth Circuit Court of Appeals, advocates of the Emergency Temporary Standard will have to justify its procedural propriety under the Occupational Safety and Health Act of 1970.

Under normal circumstances, this would not be a heavy burden of proof; the act gives the Department of Labor broad power to regulate issues of safety. However, to fully exercise these powers OSHA and the Department of Labor must complete a thorough review process consisting of various public comment periods and other opportunities for stakeholder input. All told, this review process takes well over 7 years to complete on average. Because of the pressing nature of the Covid-19 pandemic, OSHA is attempting to bypass this review process through a seldomused exception for emergency situations.195 Because this exception has only been used infrequently, the case law on it is limited. Prior to the pandemic, the last use was in 1983 by the Reagan administration in an attempt to reduce asbestos in the workplace. This case, Asbestos Information Association v. OSHA, ended up in the Fifth Circuit Court of Appeals which ruled against OSHA’s emergency standard.196 192

Jacobson v. Massachusetts, OYEZ, https://www.oyez.org/cases/1900-1940/197us11 (last visited March 18, 2022).

193

Roman Catholic Diocese of Brooklyn v. Cuomo, OYEZ, https://www.oyez.org/cases/2020/20A87 (last visited May 11, 2022).

194

OSH Act of 1970, 29 U.S.C §§ 651-660 (1970).

Szymendera, Scott, Occupational Safety and Health Administration (OSHA): COVID-19 Emergency Temporary Standards (ETS) on Health Care Employment and Vaccinations and Testing for Large Employers, CONGRESSIONAL RESEARCH SERVICE, (March 24, 2022), https://crsreports.congress.gov/product/pdf/R/R46288.

195

196

U.S. Asbestos Information Ass'n v. O.S.H.A, 727 F.2d 415 (5th Cir. 1984)

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Despite the ruling in Asbestos Information Association v. OSHA, the case law regarding Emergency Temporary Standards actually looks relatively encouraging for advocates of the vaccine mandate. Even the Fifth Circuit’s ruling in the Asbestos Information Association v.

OSHA case is largely favorable because its criticisms of the 1983 Emergency Temporary Standard are quite narrow; overall, the ruling holds that OSHA has a good deal of latitude when declaring emergency standards. For example, the court cautioned against judicial actors interfering with Department of Labor and OSHA decisions regarding what constitutes a grave danger. As the Fifth Circuit’s ruling notes, “Gravity of danger is a policy decision committed to OSHA, not to the courts,” a statement that now takes on a note of irony in light of the modern Fifth Circuit’s recent decision to stay the ETS.197 This irony highlights the fact that, although the case law on the issue may appear favorable to advocates of the vaccine mandate, it is no guarantee that courts, especially those with a strong conservative slant, will apply these precedents as expected.

Additionally, although the court’s ruling in Asbestos Information Association generally suggests that OSHA should have some discretion on declaring Emergency Temporary Standards, this does not mean they do not still have to contend with a strict burden of proof, especially on the issue of whether the Emergency Temporary Standard is “necessary”. The Reagan administration’s OSHA standard failed in large part because advocates of the ETS could not sufficiently demonstrate that alternatives to the ETS had been considered. Because the petitioners were able to show that policies like requiring employers to give employees respirators could be viable alternatives, the court determined OSHA had not met its burden to prove an ETS was necessary. When it comes to the vaccine mandate, advocates might very well run into similar problems if they cannot meet the burdens imposed by the court.

C. The Nondelegation Doctrine Even if OSHA can prove that the Covid-19 pandemic meets the burden to justify the use of an Emergency Temporary Standard as per the Occupational Safety and Health Act of 1970, this is not enough to ensure the vaccine mandate passes constitutional muster. In fact, recent moves by the Supreme Court have led legal scholars to question if the Occupational Safety and Health Act of 1970 itself might be at risk of judicial review from this case.

The basis for these concerns is a supposedly arcane legal concept known as the Nondelegation Doctrine. Prior to the 1930’s, the question of whether or not it was constitutional for Congress to delegate its powers to federal agencies was an active topic of debate. However, the legal community gradually came to the conclusion that delegation was to be allowed under the Constitution. This idea was solidified in the Supreme Court’s 1989 ruling in Mistretta v.

United States. In the case, John Mistretta, a man convicted of selling cocaine, sued the government alleging that the Sentencing Reform Act of 1984, which created the United States Sentencing Commission to establish more concrete sentencing guidelines, violated the Constitution by delegating “excessive legislative powers” to the Commission. The court denied Mistretta’s claim, ruling that Congress was within its Constitutional authority to delegate regulatory power to federal agencies so long as it did so by establishing, “an intelligible principle to which the person or body authorized… is directed to conform.” In this ruling, the court strongly suggested that courts should generally default to Congress’ authority on this matter.

197

Id.

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The thinking behind this was that, in the words of the court, “Congress simply cannot do its job absent an ability to delegate power under broad general directives.”198 Although many believed Mistretta laid to rest the nondelegation debate for good, there appears to be growing interest among conservative justices in revisiting the issue. In June of 2019, the Supreme Court heard the case Gundy v. United States, which questioned whether section 42 U.S.C. § 16913 of the Sex Offender Registration and Notification Act violates the nondelegation doctrine. Although the court ultimately ruled that it does not, all four Republicans (Kavanaugh was not yet a justice) voted to restrict the regulatory power of federal agencies.199 In Justice Gorsuch’s dissent, he proposed an alternative to the standard set by Mistretta v.

United States that delegation is proper only if Congress’ directives are, “sufficiently definite and precise to enable Congress, the courts, and the public to ascertain whether Congress’s guidance has been followed.”200 Although the way Gorsuch and his fellow conservatives hope to apply this standard is currently unclear, it could very well become a defining issue in the OSHA case.

In the Fifth Circuit’s decision to stay the mandate, they noted the petitioners’ request for the courts to strike down the Emergency Temporary Standard using the nondelegation doctrine.

Although this claim would get little traction under the precedent set in Mistretta v. United States, that could be a very different story if Gorsuch’s alternative standard from the Gundy dissent were to take effect.

Four of the Republicans on the Supreme Court have already signaled their support of Gorsuch’s alternative standard through their votes in Gundy v. United States, leaving Justice Kavanaugh as the only unknown. However, even though Kavanaugh was not on the court for Gundy, he has gone out of his way to hint at his support for the conservative push to revive the nondelegation doctrine. In late 2019, the Supreme Court declined to hear the case Paul v. United States which related to a very similar issue of Congressional delegation as Gundy v. United States. In a surprising move, Justice Kavanaugh published an opinion in spite of the court’s decision to pass on Paul. In it, he makes clear his support for Justice Gorsuch’s stance on the delegation of regulatory power to federal agencies. In fact, Kavanaugh’s Paul opinion took a more extreme stance against the nondelegation doctrine than even Gorsuch’s Gundy dissent.201 Assuming all five justices maintain their positions, there is little question that conservatives have the votes on the Supreme Court to overturn the precedent set in Mistretta v. United States, bringing back the once-abandoned nondelegation doctrine and fundamentally challenging the way federal regulatory agencies operate.

Why are conservatives so interested in reviving the nondelegation doctrine? Aside from its implications for the OSHA case, advocates of nondelegation believe it is important to maintain the separation of powers. Constitutionally, Congress is supposed to wield legislative power, not the President or the executive branch. When Congress delegates power to regulatory agencies, critics argue they give the executive branch too much lawmaking power.

198

Mistretta v. United States, 488 U.S. 361 (1989)

199

Gundy v. United States, OYEZ, https://www.oyez.org/cases/2018/17-6086 (last visited May 11, 2022).

200

Id.

201

Paul v. United States, OYEZ, https://www.oyez.org/cases/1962/19 (last visited March 11, 2022).

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Another key motivation for conservatives is that the delegation of Congressional powers to regulatory agencies is the basis for many federal regulations. Reviving the nondelegation doctrine would not only spell defeat for OSHA’s vaccine mandate, it could also restrict the power of every federal agency to regulate the workplace, environmental policy, and countless other areas. When it comes to the OSHA case, the basic concept of government regulation could be on trial.

III.

ANALYSIS AND CONCLUSION: THE OUTLOOK FOR THE VACCINE MANDATE

Although the Occupational Safety and Health Administration’s move to mandate vaccines in the workplace was dealt a swift blow by the Fifth Circuit Court of Appeals, the case is far from over. Especially now that the Sixth Circuit has lifted the stay imposed by the Fifth Circuit, there are any number of ways the vaccine line of cases could play out. As we have seen, OSHA and the Biden administration appear to have clear constitutional precedent on their side when it comes to the general concept of mandating vaccines. For over 100 years, the standard set in Jacobsen v. Massachusetts has given government actors authority to require vaccination.

However, just because vaccine mandates themselves pass constitutional muster does not mean OSHA’s Emergency Temporary Standard is in the clear. Advocates must first contend with procedural issues involved in OSHA’s bypass of the standard review process for new workplace regulations. Again, the case law appears to be on the side of the defendants, but the precedent on this issue is nowhere near as clear as Jacobsen v. Massachusetts. The Fifth Circuit’s ruling in Asbestos Information Association v. OSHA appears to recognize OSHA’s power to decide when an Emergency Temporary Standard may be needed, but it does not definitively settle the issue.

The Fifth Circuit ended up ruling against OSHA in the 1980s, and the modern Fifth Circuit similarly ruled against OSHA’s mandate in a decision that seems at odds with the case law from Asbestos Information Association v. OSHA. Realistically, although the precedent appears to favor the defendants, the Asbestos Information Association ruling is not clear enough to guarantee the vaccine mandate will pass muster, especially with the strong conservative leaning of the Sixth Circuit and the federal judiciary as a whole.

Even if OSHA does clear this procedural burden, advocates are weary of this case’s potential to become the latest vehicle for the Roberts court to curtail federal regulatory control.

If the court seizes on this case to reverse decades of precedent regarding the delegation of Congressional powers, the entire system of federal regulatory agencies could be in danger.

Although some believe this would be a beneficial step to restore the separation of powers, it would undoubtedly change government regulation as we know it.

Ultimately, there are several areas of concern for advocates of the Biden administration’s vaccine mandate, but this does not mean all hope is lost. The history and case law set by Jacobsen v. Massachusetts, Asbestos Information Association v. OSHA, and Mistretta v. United States provides a strong legal argument in favor of OSHA’s emergency temporary standard.

Whether this argument will be strong enough to win over conservatives on the court remains to be seen, especially in light of recent posturing by conservatives in the federal judiciary. If conservatives were to use this case as an opportunity for judicial activism, it could have implications that last far after the Covid-19 pandemic is a thing of the past.

To put it simply then, what is the outlook for OSHA’s vaccine mandate? Right now, it is anyone’s guess. A purely objective look at the case law appears to support the mandate, but the 51

current judicial landscape complicates matters. The only thing we know for sure is that this case will be an important indicator of whether the federal government will maintain regulatory power over employers or whether conservatives in the judiciary will decide the time for judicial activism on the issue has arrived.

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Abortion Regulation: Exploring the Reliability of Fetal Viability in Abortion Legislation Megha Nagaram Edited by Sabrina Ghashehbaba

The United States Supreme Court is currently reviewing the case of Dobbs v.

Jackson Women’s Health, a case that will determine the course of abortion rights in this country. Currently, the United States has been following the precedent set by the landmark decision of Roe v. Wade. The decision of Roe v. Wade set forth guidelines for how states could regulate abortion while protecting a women’s right to make medical decisions. In the first trimester, only a woman and her physician may make any decisions to abort; in the second trimester, the state may impose regulations concerning maternal health. However, in the third trimester, once fetal viability is achieved, the state has the power to regulate and ban abortions. Casey v.

Planned Parenthood established the standard that laws that regulate abortion prior to fetal viability create a substantial obstacle in the way of a woman seeking an abortion. In 2018, the state of Mississippi enacted the “Gestational Age Act” in order to prohibit abortions after the age of 15 gestational weeks. Jackson Women’s Health Organization, the only licensed abortion clinic in Mississippi, filed a lawsuit to challenge the law that seems to violate two Supreme Court precedents.

The conservative majority on the Supreme Court seems poised to uphold Mississippi's Gestational Age Act law, overturning Roe. If overturned, the court must restructure its framework for how abortion is regulated. The case itself calls into question the current standard of fetal viability. A domestic and international analysis of fetal viability exposes its arbitrariness as a guideline for abortion regulation. The vast majority of abortion in high-income countries, including the United States, happens prior to fetal viability. Fetal viability itself is far too broad to be interpreted as a legal precedent, making it a dangerous benchmark for reproductive rights. To preserve a woman’s right to make her own reproductive decisions and protect her bodily autonomy, the Supreme Court must restructure the standard of regulating abortion to disclude fetal viability in favor of universal, unregulated abortion.

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I.

INTRODUCTION

Almost 50 years after the Supreme Court legalized abortion, women in the United States are at risk of losing this right. A civil liberty provided by the due process clause of the Fourteenth Amendment, the right to an abortion is slowly being chipped away by regulations, denying women their reproductive rights. However, the primary idea remains intact: women should have the right to an abortion prior to fetal viability, and they should have access to abortion in case of danger to the mother’s life or health post fetal viability.202 Different states have restricted access to abortion in different ways, but most abortion regulation primarily focuses on fetal viability and gestational age.

Using fetal viability as the benchmark for abortion regulation is supported by those who favor abortion rights and oppose it. This measure allows for a defined demarcation in gestational age compared to the more arbitrary nature of Roe’s trimester-based framework, as fetal viability establishes a line in which a pregnancy must either be a pre-fetal or post-fetal. In the pre-fetal viability world, states may pass restrictions on abortions as long as they are not substantial obstacles in the path of a woman who means to attain an abortion. In the post-fetal viability world, states may impose whatever restrictions they wish only allowing for abortion when the pregnancy endangers the mother’s life. Through a comparison of the laws in the United States and other highincome countries, this paper will illustrate that using fetal viability is not a reliable benchmark to dictate abortion regulations.

II.

BACKGROUND

On January 22, 1973, The Supreme Court made the landmark decision of legalizing abortion in Roe v Wade.203 Roe argued that a Texas law prohibiting abortion except in cases of a physician order to save a woman’s life was unconstitutional and too vague. The court held that the Texas law was unconstitutional as it violated a woman’s fourteenth amendment right to privacy.204 Citing the Due Process Clause of the Fourteenth Amendment, the court acknowledged that the right to privacy includes a woman’s decision to choose to terminate her pregnancy via abortion.

However, the Court found that a woman’s right to privacy must balance against the state’s interests. Justice Blackmun highlighted that regulation of abortion must be compelling in its protection of state interests and must be legitimate.205 State laws may not then infringe upon a woman’s right to choose to have an abortion unless the regulations concern the health of pregnant women or the potential life of fetuses.

Initially, the court set guidelines for this balance based on the trimesters of pregnancy. In the first trimester, only a woman and her physician may decide to end a pregnancy with an abortion. The state can regulate abortions in the second trimester of pregnancy if the regulations pertain to the mother's health. In Roe v Wade,206 the court recognizes the beginning of the third 202

Alex Markels, Supreme Court’s Evolving Rulings on Abortion, NPR (Nov. 30, 2005, 12:00 PM), https://www.npr.org/templates/story/story.php?storyId=5029934.

203 Roe v. Wade, Oyez, https://www.oyez.org/cases/1971/70-18 (last visited Mar 3, 2022).

204 Brian Duignan, Roe v. Wade, Encyclopedia Britannica (Dec. 10, 2021). .https://www.britannica.com/event/Roev-Wade.

205 Id. 206 Supra Oyez.

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trimester as the point of fetal viability, allowing states to regulate and prohibit abortions after this point. However, the court stipulated exceptions made to safeguard the life and health of the mother to be lawful. The court defines fetal viability as the point at which the fetus is capable “of meaningful life outside the mother’s womb” to occur at about 24 weeks of pregnancy.207 The concept of fetal viability is a common theme throughout many of the court’s decisions.

For example, in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, the court established that states could not impose undue burdens on women seeking an abortion before fetal viability.208 The court defined undue burdens as regulations that set a substantial obstacle in the way of a woman seeking an abortion prior to fetal viability. Planned Parenthood filed the original lawsuit in response to the Pennsylvania legislature amending its abortion control laws to require parental consent in the case of minors, marital consent in the case of married women, informed consent, and a 24-hour waiting period.209 Planned Parenthood of Southeastern Pennsylvania sued the governor of Pennsylvania, Robert Casey, before these laws took effect. The court did not find these restrictions as undue burdens, except for spousal notification. While still upholding the right to abortion prior to fetal viability established in Roe, Planned Parenthood v.

Casey reestablished the trimester-based framework for regulations and replaced it with the framework of fetal viability.

While subsequent cases following Planned Parenthood v. Casey have focused on the undue burdens that regulations impose, the role of fetal viability as a framework for abortion regulation has not changed. Fetal viability can be defined as the stage of a fetus when it has reached the capability to live in normal conditions outside the uterus. It is important to note that viability “exists as a function of biomedical and technological capacities, which are different in different parts of the world.”210 Fetal viability is not an intrinsic property of the fetus, nor is it a function of the mother’s autonomy.

III.

MEDICAL AND LEGAL UNDERSTANDINGS OF VETAL VIABILITY

The question of the beginning of a fetus’ life is greatly debated in both medical and legal understandings of fetal viability. In the medical sense, viability is “the point at which there is a reasonable probability that a fetus could survive ex utero when provided with care.”211 Medical professionals developed this term to determine whether premature fetuses would require intensive care from physicians. Nevertheless, fetal viability has not come to represent the gestational age at which a fetus becomes independent life. Roe v Wade established fetal viability at 28 weeks.

Planned Parenthood v Casey preponed it to 23 to 24 weeks. And in Planned Parenthood v Danforth, the Supreme Court found the definition of fetal viability as “the state of fetal development when the life of the unborn child may be continued indefinitely outside the womb by

207

Supra encyclopedia britannica.

Planned Parenthood of Southeastern Pennsylvania v. Casey, Oyez, https://www.oyez.org/cases/1991/91-744 (last visited Mar 3, 2022).

209 Brian Duignan, Planned Parenthood of Southeastern Pennsylvania v. Casey, Encyclopedia Britannica (Jun. 19, 2016) https://www.britannica.com/event/Planned-Parenthood-of-Southeastern-Pennsylvania-v-Casey.

210 G H Breborowicz, Limits of Fetal Viability and Its Enhancement, PubMed, Jan. 5, 2001, abstract.

211 Elizabeth C. Romanis, Is ‘viability’ viable? Abortion, conceptual confusion and the law in England and Wales and the United States, Volume 7, Issue 1, Journal of Law and the Biosciences, 1, 4 (2020).

208

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natural or artificial life supportive systems” to be consistent with the ruling in Roe.212 In Planned Parenthood v. Danforth, the Supreme Court resisted attaching a specific gestational age to fetal viability as it did in Roe v. Wade. Instead, the Supreme Court acknowledged fetal viability as a function of a multitude of medical and technological factors. The court rejected the responsibility of placing viability at a specific gestational age. As technology rapidly changes, the function of fetal viability changes exponentially with medical innovation resulting in improved healthcare.

There is no consensus on when a fetus transforms from a terminable organism to an interminable human life. Advocates for abortion rights, advocates for abortion regulation, scientists, and religious groups all have arguments about when life begins. Neither the United States Supreme Court nor has any federal law fixed fetal viability to a specific gestational time or fetal capability. This has allowed states to define viability themselves, allowing for more restrictive abortion regulations as fetal viability is assumed to occur earlier in gestational age. Some states interpret this to determine fetal viability as they wish. These state-based regulations regarding fetal viability fall into one of three categories: the capacity of or features of the fetus, viability as a medical judgment, and viability at a fixed gestational age. Most states recognize that the ex-utero life for a viable fetus includes both natural and artificial life support. However, many states do not specify for how long these fetuses must be able to survive in an ex-utero capacity. Some states continue to define viability as a specific gestational age. Other states continue to use the trimester framework and prohibit abortion after the second trimester. This discontinuity among legislative bodies extends overseas, creating an international conundrum regarding fetal viability.

IV.

THE ROLE OF FETAL VIABILITY AS A REGULATOR OF ABORTION LEGISLATION IN THE UNITED STATES

Allowing states to choose their definitions of fetal viability may cause concern for the nature of fetal viability itself. When measuring fetal viability, most regulations solely concern the fetus’ survival rather than its ability to have a meaningful life. Fetuses can survive from as early as the ages of 21-22 gestational weeks,213 but that is not without significant risks to their long-term health. Fetal viability is an ambiguous framework, one that has been further complexified through medical innovation and may continue to change dramatically in the future. With continued advancement in neonatal care, states can continue to prepone their methods of regulation abortion at the risk of pregnant women.

A. Texas Abortion Legislation: The Texas Heartbeat Act The state of Texas has chosen to define viability at the point of a fetal heartbeat. The law, commonly referred to as SB8 or The Texas Heartbeat Act, took effect on September 1, 2021, and makes it a criminal act for physicians to perform or induce an abortion once a fetal heartbeat can

212

Pro Romanis.

213

Greg Stohr, Fetal Viability and the Fate of Abortion Laws in the U.S., Bloomberg (Dec. 2, 2021, 12:19 PM)

https://www.bloomberg.com/news/articles/2021-12-02/fetal-viability-and-the-fate-of-abortionlaws-in-us-quicktake.

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be detected.214 A fetal heartbeat or cardiac activity may be detectable as early as six weeks into pregnancy. Physicians may not perform an abortion after a fetal heartbeat has been detected unless in cases of medical emergencies. The law makes no provision for cases of rape or incest. The Texas Heartbeat Act is only enforceable through private civil actions,215 restricting enforcers to non-state officials.

The Texas Heartbeat Act employs private citizens to sue anyone who: performs or induces an abortion, aids and abets the obtainment of an abortion, pays for an abortion, or intends to perform or aid and abet the performance of an abortion in violation of the Texas Heartbeat act.

Private citizens may not sue the pregnant person but may sue their healthcare provider and anyone who might accidentally or intentionally aid and abet them. Private citizens or claimants who are successful in their suit may claim no less than $10,000 in damages for each abortion performed.216 Defendants, even those found innocent, are prohibited from being awarded costs or attorney’s fees as is customary in civil cases. The Department of Justice filed a lawsuit to prevent the State of Texas from enforcing SB 8, protesting its violation of both the Supremacy Clause and the Fourteenth Amendment.

When considering viability regarding the Texas Heartbeat Act, it is necessary to recognize that the law interprets viability through a fetal heartbeat. The Texas heartbeat act uses “heartbeat as an indicator of life and therefore personhood” in an “attempt to create a new class of persons — fetuses in utero — entitled to legal protection.”217 The fundamental argument behind heartbeat legislation is that a fetal heartbeat indicates intrinsic life within the fetus. However, a fetal heartbeat is not truly an indicator of life for an unborn fetus. At the six-week gestational age mark, medical professionals can make no definitive conclusions about the health of the offspring or the mother.

By setting the gestational age limit so early, the Texas legislation prevents mothers from marking informed decisions for their health and their offspring’s health. Miscarriages, detections of fetal abnormalities, or other medical complications may arise after detecting a fetal heartbeat. SB8 strives to paint a picture of a viable offspring at six weeks, which may not be the case.

In fact, at six weeks of gestational age, a fetus cannot be medically referred to as a fetus but is more correctly categorized as an embryo. Medical definitions classify the stage at six gestational weeks as an embryo. The embryo may not be considered a fetus until eight weeks of gestational age. Misleadingly named a fetal heartbeat, the heartbeat in question may not be medically classified as a heartbeat.218 Specifically, the Texas law defines a fetal heartbeat as cardiac activity or the repetitive rhythmic contraction of the fetal heart. However, an ultrasound machine can detect “fetal heartbeat” at six gestational weeks. However, the sound heard by 214

Joanna R. Lampe & Jon O. Shumabukuro, The Texas Heartbeat Act (S.B. 8), Whole Woman’s Health v. Jackson, and United States v. Texas: Frequently Asked Questions, Congressional Research Service, Oct. 25, 2021, 1, 1.

215 Id. 216 Lampe and Shumabukuro, supra.

217 Dabney P. Evans & Subasri Narasimhan, A Narrative Analysis of Anti-Abortion Testimony and Legislative Debate Related to Georgia’s fetal ‘heartbeat’ ban”, Informa UK Limited, Dec. 28, 2020, 1, 1-2.

218 Selena Simmons-Duffin and Carrie Feibel, The Texas Abortion Law Hinges on ‘Fetal Heartbeat.’ Doctors Call That Misleading, NPR (September 3, 2021, 3:14 PM), https://www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnt-amedical-term-but-its-still-used-in-laws-on-abortion.

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pregnant women at the time of their six-week ultrasound is not the fetus’ heartbeat as the law may suggest. Medical consensus indicates that the embryo, not the fetus, does not have a functioning heart or cardiovascular system at six weeks of age. Rather the sound picked up and amplified by the ultrasound machine is electrical activity emitted by the cell clump that makes up the embryo.

Brazen misinterpretation and misleading jargon culminate in creating an unconstitutional and deceptive law. The Texas Heartbeat Act may lead women to believe that their embryo has a heartbeat at six weeks, thus interpreting it as a sign of life. Knowing the financial repercussions of pregnancies for women who wish to terminate them, this misleading legislation serves as a forced restriction on a woman's reproductive rights.219 Texas’ abortion law provides a clear case study of how the current abortion regulation framework of fetal viability fails to protect women’s reproductive rights. The law misleads women about their potential health, their offspring’s possible health, and the viability of their offspring at a given point in time. Texas has successfully been able to almost completely outlaw abortion in the state under the guise of the current framework to regulate abortion. The short time a woman may legally obtain an abortion functionally prevents most abortions, regardless of medical considerations. The failure of the existing framework’s ability to protect women’s reproductive rights in Texas underlines the need for a fundamental change in framework.

B. Mississippi Abortion Legislation: The Mississippi Gestational Age Act Another state challenging the status quo of legalized abortion is Mississippi. Mississippi has set its abortion ban at 15 weeks of gestation, which may seem reasonable compared to Texas’ Heartbeat Act. However, Mississippi’s law sets its ban at almost ten weeks before the medical definition of fetal viability. The Mississippi Gestational Age Act (HB 1510) only allows abortions after 15 gestational weeks for medical emergencies or severe fetal abnormalities. Similar to that of Texas, the law makes no exceptions for cases of rape or incest220.

The only abortion clinic in the state of Mississippi is the Jackson Women’s Health Clinic.

On the day that Mississippi Gestational Age Act was set to enter into effect, Jackson Women’s Health Organization immediately challenged its legality.221 The law has not yet gone into effect in Mississippi, as a federal court blocked its enforcement.222 Soon to be heard by the US Supreme Court, the case Dobbs v. Jackson Women’s Health Organization would test the constitutionality of abortions performed prior to fetal viability. The state of Mississippi, represented by the named petitioner Dobbs, is asking for the court to overturn Roe v. Wade and Planned Parenthood v. Casey and rewrite the standard for abortion regulations in the Country.

The Mississippi Gestational Age Act does not even attempt to provide the illusion of attributing the 15 weeks of gestational age to fetal viability. The law estimates that 15 weeks of 219

Simmons-Duffin and Feibel, supra.

Jenny Gathright, Mississippi Governor Signs Nation’s Toughest Abortion Ban Into Law, NPR, (March 19, 2018, 6:44 PM), https://www.npr.org/sections/thetwoway/2018/03/19/595045249/mississippi-governor-signs-nations-toughest-abortion-ban-into-law.

221 Tori Staley and Jenny Guo, Dobbs v. Jackson Women’s Health Organization, Cornell Law School, https://www.law.cornell.edu/supct/cert/19-1392.

222 Adeel Hassan, What to Know About the Mississippi Abortion Law Challenging Roe v. Wade, The New York Times, (December 1, 2021), https://www.nytimes.com/article/mississippiabortion-law.html.

220

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gestational age is when a fetus begins to take human form.223 Mississippi showcases a blatant disregard for the current framework, articulating a case of ignoring federal law and fetal viability.

The altered appearance of the fetus does not alter the fetus’ ability to survive outside the womb nor separate itself further from the mother in any meaningful way. More arbitrary than the line of fetal viability, the Mississippi law chooses a random point in gestation to begin to ban abortion.

The arbitrary nature in which this time limit was chosen represents the wish of certain states to simply just ban abortion, with a smaller amount of consideration given to the scientific practicality of their reasoning. The job of legislative bodies does not include making medical decisions for its constituents but rather protecting their rights. The Supreme Court must implement an improved framework to prevent states from superimposing federal law to protect women's reproductive rights.

C. Oklahoma Abortion Legislation In an attempt to set a new extreme, on March 22 of 2022, the Oklahoma House passed a bill that would completely ban abortion in the state. Emboldened by the unrestrained legislation in Texas, Oklahoma has modeled its bill after the Texas Heartbeat Act. The bill prohibits all abortions in the state, with no exceptions other than for the mother's life. The bill notably lacks any exceptions for cases of rape or incest, setting an oppressive burden upon victims. Furthermore, the bill lacks any forms of exceptions for fetal abnormalities or disabilities. Moreover, in line with Texas’ bill, the bill employers private citizens to sue abortions seekers, abortion providers, and all those who may aid and abet an abortion seeker for damages up to $10,000.224 The bill also stipulates that defendants being sued under this law cannot argue the bill's unconstitutionality in their defense.225 Oklahoma is following the lead of Texas in creating laws meant to rob the people of justice through deception and cruel manipulation of the legal and judicial system of the United States.

This radical bill follows a 2,500% increase of Texas patients in Oklahoma Planned Parent clinics.226 Oklahoma’s total ban on abortion represents a draconian take on regulating abortion.

States do not have the right to completely outlaw freedoms entitled to their constituents. Oklahoma does not even attempt to circumvent the current framework as Texas and Mississippi did but instead throws the current framework out the door to establish its own.

223

Katherine Klein, The Gestational Age Act and the Nationwide Fight Against Reproductive Health, The American Civil Liberties Union Mississippi, (February 15, 2018, 11:00 AM), https://www.aclu-ms.org/en/news/gestational-age-act-and-nationwide-fight-against-reproductivehealth.

224 Andy Rose and Veronica Stracqualursi, Oklahoma state House passes near-total ban on abortion, to be enforced through civil action, CNN Politics, (March 23, 2022, 10:19 AM), https://www.cnn.com/2022/03/23/politics/oklahoma-house-near-total-abortion-ban/index.html.

225 Shawna Chen and Oriana Gonzalez, Oklahoma House clears near-total abortion ban, Axios, (March 22, 2022), https://www.axios.com/abortion-ban-oklahoma-house-d62be888-5d9e-44699098-63b7f4b2160e.html.

226

Oriana Gonzalez, Texans overwhelmingly traveled out-of-state to get abortions after ban took effect, AXIOS, (March 5, 2022), https://www.axios.com/texas-abortion-ban-planned-parenthoodroe-79b70317-8b2a-4d8a-aa3c-e98c03c5ed1b.html.

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The historical analysis suggests that as states outlaw abortion, it will not stop but only become more dangerous. As conservative legislatures continue to repeal freedoms and civil liberties in the United States, the need for a more fundamental and systematic change is evident.

The blatant disregard of the current framework exemplifies the will and ability of conservative states to disregard the federal legislative framework as they please. Any framework created may be manipulated or disregarded, stressing the need to overhaul all federal abortion regulations. The only way to protect women’s reproductive rights is to deregulate abortion completely.

V.

INTERNATIONAL USAGES OF FETAL VIABILITY AS A REGULATOR OF ABORTION LEGISLATION

Analyzing international approaches to abortion regulation provides valuable insight into the practicality of different regulators of abortion legislation. Pregnancy is a global constant, and social practices regarding abortion are comparable in high-income countries. However, international standards of fetal viability vary by medical definition. Examining different countries' definitions of fetal viability allows for a comparative understanding of fetal viability and its importance in abortion regulations. Internationally, a different set of regulations for abortion is prevalent. Canada, China, South Korea, Vietnam, and Australia allow abortion to be broadly legal with no explicit gestational limit. The United States, Great Britain, the Netherlands, and Singapore all technically allow for abortion until the point of fetal viability. Overall, there has been a movement toward more liberalized abortion laws, with countries moving to decrease their number of regulations and even completely legalize abortions where it was previously illegal. Only three countries since 1994 have moved to restrict abortion even further. States like Texas, Florida, and Mississippi are among Nicaragua, Poland, and El Salvador in their quests to limit female reproductive rights.227 While some countries may have gestational limits on abortion, it is still accessible after this timeframe passes. Germany, for example, allows for abortion by request until 12 weeks of gestational age, seemingly more restrictive than Mississippi's ban. However, in Germany, a woman may obtain an abortion up until 22 weeks if she believes it necessary for her mental or physical health or present or future living conditions. 228 A. Irish Abortion Regulation The Republic of Ireland has moved from a total ban on abortion to a partial ban. The comparison of Ireland to America shows one country moving forwards while the other moves backward in terms of female reproductive rights. The Republic of Ireland’s abortion regulation may compare to the Mississippi legislation but is still laxer than Texas’. In December of 2018, the Regulation of Termination of Pregnancy Act passed in Ireland allowing for abortion on request until 12 weeks of gestation. After 12 weeks of gestation, abortion is still obtainable in cases of risk 227

Daniela Santamariña, Youjin Shin, Sammy Westfall, and Ruby Mellen, How abortion laws in the U.S compare with those in other countries, THE WASHINGTON POST, (September 27, 2021), https://www.washingtonpost.com/world/interactive/2021/us-abortion-laws-worldwide/.

228 Claire Cain Miller and Margot Sanger-Katz, On Abortion Law, the U.S. Is Unusual. Without Roe, It Would Be, Too., THE NEW YORK TIMES, (Janurary 22, 2022), https://www.nytimes.com/2022/01/22/upshot/abortion-us-roe-global.html.

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to the life or health of the mother or a severe fetal anomaly.229 Prior to the referendum allowing the passing of the new act, abortion seekers and those who helped a person obtain an abortion could face criminal penalties. The new act maintains criminal penalties for those who aid an abortion seeker in obtaining an abortion after 12 weeks of gestation but does not impose criminal penalties upon the abortion seeker themselves. Once abortion services became available in Ireland, the Irish Department of Health found that 6,666 abortions had taken place in Ireland, with 98% of those abortions taking place prior to the 12-week gestational limit.230 Before the Regulation of Termination of Pregnancy Act in Ireland, abortion was illegal with criminal penalties. However, allowing for abortion was a critical step to allowing women access to “self-determination and bodily integrity” by providing “safe, legal, and local abortion.”231 Unfortunately, while Ireland seems to be moving forward and increasing access to abortion, states within the United States of America seem to be moving to decrease access. The cognitive dissonance brought upon by contradictory international regulations regarding abortion can be addressed by analyzing Ireland's current state of care. Abortion may be legally accessible in Ireland, but it is still inaccessible to those who require it.

Due to legal and non-legal barriers, access to abortion in Ireland does not meet the standard of accessibility for the women who need it. Non-legal barriers to abortion continue to exist in Ireland, with the availability of abortion limited because most of the abortion providers in Ireland only provide abortion up until ten weeks of gestation, rather than the 12 weeks of gestation prescribed by the law.232 Ireland also imposes a three-day waiting period for abortion-seekers.

After 12 weeks of pregnancy, women must undergo “unworkable and arbitrary standards for termination,” needing agreement from two specialist medical practitioners who attest that the fetus will die before or within 28 days of birth. Abortion is also geographically uneven throughout Ireland due to obstructive doctors. Although the 12-week abortion law may seem conservative and stringent compared to more liberal American states, the move to increase access to reproductive rights in Ireland must be acknowledged and celebrated.

B. Comparison of the United States to Other High-Income Countries Like the United States, both Great Britain and the Netherlands use fetal viability as the point from which abortion is widely prohibited. The Netherlands defines fetal viability as a gestational age of 2 weeks and provides abortions to women up until 14 weeks from their last menstrual period. The Netherlands still requires a five-day waiting period before a woman can access abortion and requires a parent or guardian’s consent for minors under 18, except in exceptional circumstances.233 The Netherlands has an extremely low incidence of abortion due to two key factors inherent to Dutch society.234 Dutch healthcare's free and readily accessible family 229

Sydney Calkin and Ella Berny, Legal and non-legal barriers to abortion in Ireland and the United Kingdom, MA@POC, July 30, 2021, at 1, 1-7.

230 Id. 231 Id. 232 Calkin and Berny, supra.

233 The Netherland: New 2020 Data, ABORT REPORT, (2020), https://abortreport.eu/netherlands/.

234 Evert Ketting and Paul Schnabel, Induced Abortion in the Netherlands: A Decade of Experience, 1970-80, 11. STUDIES IN FAMILY PLANNING 385, 385-394 (1980) 61

planning services allow the percentage of sexually active Dutch men and women using reliable contraceptive methods to be very high.235 In addition, Dutch society has an open attitude towards sexuality, allowing for effective contraception usage. Dutch society views abortion as something to be avoided rather than prohibited.236 The United Kingdom, on the other hand, sets the gestational limit for abortions to be 24 weeks. Abortions provided after the 24 age mark require the mother’s life to be at risk or for the fetus to have a severe disability if the pregnancy were to continue. Abortions may be kept confidential at the patient’s request, and no parental notification is required for minors. The Infant Life Preservation Act of 1929 designates willful destruction of a “fetus capable of being born alive” as a criminal offense. The Abortion Act of 1967 is what sets 24 weeks as the limit for termination to be a lawful and provided defense for medical professionals provided after 24 weeks if there is clear proof of the danger of “grave permanent injury” to the health of the woman or substantial risk of abnormalities to the fetus. These laws recognize an implicit viability threshold of fetal viability by defining it in terms of gestational age.237 The law disregards medical reality and opinions by defining fetal viability at 24 gestational weeks. However, the definition of viability as a “fetus capable of being born alive” does not address the capacity of being born alive. The case C v S238 in the civil division of Great Britain’s Court of Appeals provided further clarification on the capacity of fetal life under the Infant Life Preservation Act. The court ruled that fetal movement did not qualify as the capacity to be born alive. Instead, the court stipulated that “a fetus was capable of being born alive only if it could breathe after birth with or without a ventilator. In a later case, the court suggested that viability depended on the fetus’s ability to live “through its own lungs,” without the dependence of “its living or power of living through any connection with its mother.”239 Being born alive under English law seems to rely upon the fetal ability to breathe. However, there is no requirement for the ability to breathe for a certain time after birth, implying that simply surviving birth with the ability to breathe is enough to claim viability. Furthermore, the law does not distinguish how long after the birth the child needs to be able to breathe. This ambiguous English law defines fetal viability as “being born alive and surviving for a time by breath, rather than being born alive and surviving in the longer term.”240 C. Timeframe of Abortion Performances Compared to the Legal Gestational Age Limit in High-Income Countries A peer-reviewed observational study by the British Medical Journal of Sexual and Reproductive Health examined the distribution of abortions by method and gestational age in twenty-four high-income countries with liberal abortion laws. In most countries studied, 90% of abortions occurred within the first 13 weeks of gestation, and over two-thirds of all abortions took

235

Id. Id. 237 Supra Romanis.

238 C v. S (1987) [United Kingdom Court of Appeals].

239 Pro Romanis.

240 Pro Romanis.

236

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place before the first nine weeks of abortion.”241Specifically, in the Netherlands, 18% of abortions occurred after 13 weeks. In Norway, Finland, Sweden, England, and Wales, 72% of all abortions occurred before nine weeks of gestation.

The method of abortion also may affect the gestational age at which an abortion may occur.

Countries like Scotland, Singapore, France, and Italy employ mandatory waiting periods ranging from 28 hours to a week. Mandatory waiting periods increase the gestational age at which abortions may occur, possibly limiting a women’s access to abortion. Medical professionals recommend medical abortions or medication abortions to be performed prior to 9 weeks of gestational age.

This recommendation of gestational age for the medical procedure could explain the high international rates of abortion prior to nine gestational weeks. Over two-thirds of abortions in Northern European countries are medication abortions. In sharp contrast, 81% of abortions performed in Italy are surgical abortions. Yet, in all the countries studied, there has been an upwards trend in the usage of medication abortion as the most common form of abortion within that country. In the Netherlands, where abortion is accessible until fetal viability, only 5.1% of Dutch women who had an abortion obtained at 13 weeks of gestation or after. However, non-Dutch women constituted 72% of the abortions in the Netherlands after 13 weeks.242 According to the Center for Disease Control’s Abortion surveillance in 2019, 92.7% of abortions occurred between 13 weeks of gestation.243 Most abortions occur well before the 13week mark, internationally in other high-income countries and the United States. As most abortions occur so early in gestation in both the United States and other high-income countries, the question remains why abortion bans at 15 weeks, such as in Mississippi, are so controversial.

VI.

CONCLUSION

With fetal viability as the central point in the debate on the regulation of abortion in the United States, it is crucial to reassess its importance as a metric in the scope of both pregnancy and abortion regulation. Despite being a critical medical concept, there is no agreed-upon gestational capability nor gestational age that can be pinpointed as the point at which a fetus becomes viable.

An ambiguous, undefined notion of fetal viability only moves earlier into pregnancy as medical technologies continue to advance. Furthermore, using fetal viability as a benchmark for regulation allows for medical misappropriation, as in the case of heartbeat bills, and promotes the ambiguity present in Mississippi's 15-week ban. Fetal viability should not be the determiner of abortion regulation.

However, the new regulation structure of abortion in the United States of America rests in the hands of the United States Supreme Court. The court's decision in the case of Dobbs v. Jackson Women’s Health will redetermine the role of fetal viability as the sole federal regulator of abortion law. As the Supreme Court becomes an increasingly politicized body, the outcome of cases may 241

Anna Popinchalk and Gilda Sedgh, Correction: Trends in the method and gestational age of abortion in high-income countries, BMJ SEXUAL & REPRODUCTIVE HEALTH 1, 1-10 (2019).

242 Pro Popinchalk and Sedgh.

243 Katherine Kortsmit PhD, Michele G. Mandel, Jennifer A. Reeves MD, Elizabeth Clark MD, H. Pamela Pagano DrPH, Antoinette Nguyen MD, Emily E. Petersen, MD, Maura K. Whiteman PhD, Abortion Surveillance — United States, MMWR SURVEILL SUMM, 2019, 1, 1-29.

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not be absolutely predeterminable but allows for understanding the court's intentions and attitudes to more controversial, polarizing political issues. In the Dobbs v. Jackson Women’s Health case, the court's role is to review whether all pre-viability prohibitions on elective abortions are unconstitutional. The state of Mississippi contends that Roe v. Wade is outdated and prevents Mississippi from protecting both unborn and maternal lives. The conservative majority on the Supreme Court suggests that the outcome of Dobbs v. Jackson Women’s Health is that the court will legalize either some or all pre-viability abortion regulation or establish a new framework for abortion regulation.

An analysis of international attitudes towards abortion regulators details a picture of a move towards increased access to abortion. Ireland most clearly depicts this phenomenon, despite its history of religious opposition to abortion. The United Kingdom takes a different approach by precisely defining fetal viability and preventing ambiguity in its framework. Other high-income countries such as the Netherlands may set limits on abortion earlier than fetal viability but allow for greater access to health access and care than the United States. An overall constant is the timeframe of abortions. 90% of abortions happen within the first 13 weeks of gestation, well before fetal viability. This international analysis reinforces that fetal viability is a flawed indicator for legislative processes.

This paper posits that fetal viability should not be the regulator of abortion legislation in the United States. The vast majority of abortions occur prior to viability, urging political actors against abortion to move up the viability line as much as possible. As long as fetal viability remains even a determinant in the legislative process regarding abortion, the danger of severely restricting if not making abortion inaccessible to women remains. On a legal basis, the Supreme Court cannot continue to allow fetal viability to be the regulator of abortion legislation. Instead, this paper argues for a complete overhaul of all federal abortion regulations. The federal government should not regulate abortion. Moral questions regarding abortion stem from the expulsions of viable fetuses, yet most abortions happen prior to fetal viability. Any form of federally established framework is subject to partisan squabbles, undermining women’s rights to their reproductive health. The only way to protect the right to abortion in America is to deregulate it completely

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A Comparative Analysis of Abortion Law in Poland and the United States Roksana Gorgolewski Edited by Sabrina Ghashehbaba

A hotly contested political issue, abortion has been just as challenged in legal settings beyond the United States. Nations across the globe have had different methods for legislating abortion through time. Taking Poland and the United States as test cases for their similarly structured federal governments and majority prochoice constituents, these nations show vast differences in the methods to both criminalize and legalize abortion. This article aims to compare Poland and America’s complex abortion history, taking a unique focus of analyzing the Catholic Church’s impact on laws and jurisprudence as a result. The terminal conclusion finds that the Church’s impact in both nations has been grossly underrepresented in academia and supports the theory that Poland and the United States share similar legal histories regarding current legalization efforts against abortion.

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I.

INTRODUCTION

The state of abortion law in the United States and in Poland has never faced such complexities as it does right now. Supreme Court cases in the United States in the past eight years have been steadily limiting access to abortions - making them harder to obtain for those that need them most.244 In Poland, Trybunał Konstutucyjny, the Constitutional Court, has outlawed virtually any exemption to allow a pregnant person to terminate their fetus.245 In both nations, anti-abortion rhetoric has dramatically increased, with some in government going as far as advocating jail time246, or even the death penalty for those who attempt to seek abortions.247 Pregnant people in these nations are losing autonomy, liberty, and control over their bodies - giving it up in order to carry their fetus to full term for the expressed desire of the state. One of the greatest benefactors of the pro-life movement is the Catholic Church. In both the United States and Poland, the Church has provided support to anti-abortion groups,248 influencing the laws so profoundly it calls into question the validity of the separation of church and state as well as the functionality of democracy.

Looking at current jurisprudence and abortion regulations of both nations will allow for a deeper understanding of current efforts against abortions and their ease of access. This paper will also attempt to show a link between the Church’s involvement in the pro-life sphere and current antiabortion jurisprudence and legislation. Crucial similarities between the United States and Poland position them as relevant cases for comparison. Though a majority of their populations support abortion in the aggregate, current government regulation has been increasingly restrictive towards reproductive rights. Also, the Catholic Church’s roots in both nations ought to be looked at when looking at intended influence over laws, legal challenges brought, and financial contributions made towards anti-abortion efforts.

II.

THE UNITED STATES

A. American Jurisprudence on Abortion In America, states have long thought themselves the correct arbitrators for determining ease of access to abortions, citing a common view regarding the Constitution’s neutrality on abortion. Prior to Roe v. Wade249 legalizing abortion until a fetus’ viability and recognizing abortion as a constitutional right, abortion was illegal in thirty states. In states where it was legal, only four allowed termination of pregnancy upon request of the pregnant person. One state permitted abortion solely in the case of rape. Two states considered it legal when a danger was posed to the pregnant person. Thirteen states allowed abortion for a flurry of reasons: rape, incest, a likely-damaged fetus, danger to the pregnant person’s health. The Supreme Court has only 244 SUPREME COURT APPEARS OPEN TO UPHOLDING MISSISSIPPI ABORTION RESTRICTION THE NEW YORK TIMES, HTTPS://WWW.NYTIMES.COM/LIVE/2021/12/01/US/ABORTION-MISSISSIPPI-SUPREME-COURT

245 POLAND ABORTION: TOP COURT BANS ALMOST ALL TERMINATIONS BBC NEWS, HTTPS://WWW.BBC.COM/NEWS/WORLD-EUROPE-54642108 246 ANOTHER TEXAN GOP LAWMAKER IS ATTEMPTING TO MAKE ABORTION PUNISHABLE BY THE DEATH PENALTY THE TEXAS TRIBUNE, HTTPS://WWW.TEXASTRIBUNE.ORG/2021/03/09/TEXAS-LEGISLATURE-ABORTION-CRIMINALIZE-DEATH-PENALTY/

247 POLAND CLARIFIES ABORTION LAW AFTER PROTESTS OVER MOTHER’S DEATH BBC NEWS, HTTPS://WWW.BBC.COM/NEWS/WORLD-EUROPE59206683

248 PSATORAL PLAN FOR PRO-LIFE ACTIVITIES USCCB, HTTPS://WWW.USCCB.ORG/PROLIFE/PASTORAL-PLAN-PRO-LIFE-ACTIVITIES 249 ROE V. WADE , (1973) 410 U.S. 113

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prohibited access to abortion under three criteria: health of a person, state interest of the fetal life, and “integrity of the medical profession.”250 This disordered array of state law regarding abortion may once again become common practice, should the Supreme Court restrict ease of access to abortion and by default, allow states to independently legislate on citizens’ reproductive rights.

Looking at case law and jurisprudence of the Court, abortion’s legal justification will become clear.

Before the right to abortion was firstly squarely settled before the Supreme Court in 1973, two cases of note aided in that process by determining essential precedent. Griswold v.

Connecticut251 held, for the first time, that individuals had a right to privacy. In this case, couples have the right of marital privacy against state laws regarding contraception. Justice Douglas wrote that the Constitution does not have a specific amendment dealing with privacy but that the Bill of Rights holds a penumbra maintaining a right to privacy. The First, Third, Fourth, and Ninth Amendments uphold the penumbra of a right to privacy. However, the first distinction between the right to privacy is made in this case. Altering viewpoints about where the right to privacy was found - the Ninth and Fourteenth, the Due Process Clause of the Fourteenth, the Fourteenth, nowhere at all - was another indicator that the right to privacy and its place in the Constitution was not going to be an easy interpretation for Justices and the Court by large in future cases.

The only other pre-abortion case heard by the Supreme Court was Eisenstadt v. Baird,252 which granted non-married couples the same right to contraceptives as Griswold253 did to married couples. The Court held that Massachusetts law failed the rational basis test under the Equal Protection Clause of the Fourteenth Amendment. Justice Brennan wrote that without a rational basis for why unmarried couples could not have access to contraception, the law is unconstitutional - avoiding invoking Griswold254 at all. This case also produced a quotation that acutely describes the stance of pro-abortion movements for the past fifty years. Justice Brennan noted, “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as to the decision whether to bear or beget a child.”255 Doe v. Bolton256 and Roe v. Wade257 came down the docket together in 1973. Roe258 legalized abortion and Doe259 cleared up the definition of a pregnant person’s health and the constitutional right to privacy regarding abortion. Together, they formed the right to an abortion under liberty, autonomy as a right under the Constitution. Doe260 found that Georgia’s requirements of written approval by physicians and the three member committee to be unconstitutional. The Court determined that the right to privacy extended to marriage, procreation, education, child-rearing, and familial relationships. Justice Blackmun noted with care, “the deep 250 STANFORD LAW REVIEW, HTTPS://REVIEW.LAW.STANFORD.EDU/WP-CONTENT/UPLOADS/SITES/3/2018/01/70-STAN.-L.-REV.-319.PDF 251 GRISWOLD V. CONNECTICUT, (1965) 381 U.S. 479 252 EISENSTADT V. BAIRD, (1972) 405 U.S. 438 253 GRISWOLD AT 381 254 ID 255 EISENSTADT AT 405 256 DOE V. BOLTON, (1973) 410 U.S. 179 257 ROE AT 410 258 ID 259 DOE AT 410 260 ID

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and seemingly absolute convictions on both sides”261 as well as the “sensitive” and “emotional” nature of the case, a great indicator of the passionate and personal nature of abortion present-day.

The Court determined that constitutionally, privacy was “broad enough to encompass a [person’s] decision whether or not to terminate their pregnancy.”262 Finally, the health of a pregnant person was defined as emotional, familial, physical, psychological, or by their age. In Roe,263 the Court first decided that the right to privacy in the Due Process Clause of the Fourteenth Amendment protects persons deciding to have abortions. They balanced this with the government’s interest to protect people’s health and the “potentiality” of human life, while recognizing that this balancing act shifts during the course of pregnancy. As such, a trimester framework was established. Broad prohibitions of abortion were illegal, as were first trimester abortion regulations. During the second trimester, only reasonable regulations relating to parental health were allowed. The third trimester, or the time when the fetus developed most “potentiality” for life, could be regulated once the fetus reached viability. Then, a state may regulate or even prohibit abortion so long as exceptions are made to save the life or health of the pregnant person. The workability of the trimester framework was not good, and problems with state laws and regulations became very prevalent, leading to the greatest abortion case of the 1990’s.

Planned Parenthood v. Casey264 changed the legal principles regarding abortion law.

Pennsylvanian abortion law required a twenty-four hour waiting period, informed consent, spousal notification, and parental consent prior to a physician performing an abortion. The waiting period required that patients seeking an abortion would have to add another day to their procedure, coming to the clinic twice; informed consent referred to a requirement of the providers to explain to the patient the risks, consequences of the procedure. Spousal notification required that, if a patient was married, that their spouse be notified of the abortion procedure prior; parental consent worked the same way, however only applying to minor patients. Deciding that the previous trimester framework was in fact unworkable, the Court did hold onto “the essential ruling of Roe.”265 Stare decisis played a massive role in this decision, having decided nineteen years of Roe266 related decisions had enough time to cement it into American jurisprudence. Roe267 was not proven unconstitutional here nor anywhere else and therefore had to be given reverence. In the new standard, Justice O’Connor asked if a state law has an effect or purpose that is unduly burdensome, defining it as “substantial obstacle in the path of a [person] seeking an abortion before the fetus attains viability.”268 Under the undue burden framework, three requirements, save spousal notification, were constitutional. The dissents disagreed with upholding Roe,269arguing it was incorrectly decided and that it was not a protected liberty under the Constitution.

Whole Woman’s Health v. Hellerstedt270 looked at the balancing act of the government’s interest of parental health versus laws that restrict abortion. Justice Breyer wrote that courts must 261 ID 262 ID 263 ROE AT 410.

264 PLANNED PARENTHOOD V. CASEY, (1992) 505 U.S. 833 265 ROE AT 410 266 ID 267 ID 268 CASEY AT 505 269 ID 270 WHOLE WOMAN”S HEALTH V. HELLERSTEDT, (2016) 579 U.S. 582

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weigh the extent of the served laws with the government interest it is supposed to protect. In this case, the Texan law did not sufficiently benefit parental health enough in order to justify the burden it placed on pregnant persons, violating the undue burden standard. The dissent, authored by Justice Thomas, felt that the additional tests of judicial review made the undue burden standard “[meaninglessly] [formalistic]” 271 and therefore gave little to no guidance to the lower courts because of its indifference to the Constitution. Another case weighing benefits to a pregnant person versus an expressed government interest is June Medical Services v. Russo.272 Russo273 asked if the Fifth Circuit of Appeals’ decision to require physicians to have admitting privileges at hospitals clashed with the precedent set in Whole Woman’s Health274. The Supreme Court found that both Casey275 and Whole Woman’s Health276 required that district courts independently review the legislative facts of an abortion related case and weigh their benefits against their burdens of pregnant persons. An appellate court would only be able to throw out those facts if they were found to be erroneous, which was not the case. Instead, the findings of the district court were “ample in support of burdens and benefits”277 of the Louisiana law. Therefore, the judgment of the Fifth Appellate Court was overturned. Dissents in this case were aplenty, but the most concurred dissent found that the majority misused stare decisis, “invoked the inapplicability of appellate review” and distorted the record. Furthermore, the majority abandoned the Casey test for a new balancing act in Whole Woman’s Health.278 Dobbs v. Jackson Women’s Health Organization279 is an undecided case on the current Supreme Court docket. It is said to be the very case to overturn Roe v. Wade.280 If the final opinion is anything like the confirmed, leaked draft, it will, along with a complete reversal of Casey.281 Dobbs282 asks whether the Mississippi law banning abortion at fifteen weeks gestation is unconstitutional. The Court has not heard a case on viability since Roe.283 Dobbs284 has seven important parts: TRAP Licensing, twenty-four hour mandatory waiting period, two-trip requirement, physician-only, telemedicine ban, fifteen week ban, six week ban. TRAP Licensing refers to a restrictive licensing system, similar to the admitting privileges scheme prior. The twotrip requirement corroborates the mandatory waiting period, preventing low-income pregnant persons from accessing abortions as a result of their financial status. The telemedicine ban prevents physicians and other providers from utilizing online technology to counsel patients and provide care, especially problematic during the COVID-19 pandemic. Finally, requiring only physicians perform abortions would significantly reduce providers in Mississippi. The difference between the 271 ID 272 JUNE MEDICAL SERVICES V. RUSSO, (2020) 591 U.S. ___ 273 ID 274 ID 275 CASEY AT 505 276 WHOLE WOMAN’S HEALTH AT 579 277 JUNE AT 591 278 WHOLE WOMAN’S HEALTH AT 579 279 DOBBS V. JACKSON WOMEN’S HEALTH ORGANIZATION , NO. 19-1392 280 ROE AT 410 281 CASEY AT 505 282 DOBBS AT 19-1392 283 ROE AT 410 284 DOBBS AT 19-1392

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fifteen and six week ban is that at fifteen weeks, physicians who perform abortions are threatened with civil penalties as a result. Should the leaked Dobbs285 be anything close to its final form and Roe286 be struck down as having been erroneously decided from the start, abortion as a constitutional right would cease to exist on the federal level. Roe’s287 fifty-year precedent and the hundreds of cases that rely on its principles would no longer serve to further the interest of a right to abortion. Fifteen states hold legislative protections for abortion rights.288 Thirteen legalized “trigger laws” that prohibit abortion the very second Roe 289is overturned. Twenty one states have already either tried to pass legislation harmful or restrictive to abortion access to people or can very easily do so.290 B. The Catholic Church Within the Pro-Life Movement Roe291 and its consequences for pregnant persons mobilized both sides of the abortion movement. After 1973, the NARAL organization for a Pro-Choice America turned into the National Abortion Rights Action League. They fundraised for abortion centers to remain open, abortions to become extremely low cost, and for politicians of a similar political ideology to remain in power. The anti-abortion groups had a very powerful ally: the Church. The Catholic Church in the United States has not been just a bystander to the abortion movement. Connie Paige has said that “[t]he Roman Catholic Church created the right-to-life movement. Without the Church, the movement would not exist as such today.”292 The Church’s support has existed in the form of doctrinal changes to its religious dogma; canon law banned abortions in 1869.293 Church sermons on right-to-life groups provide legitimacy to these groups, often hosting meetings and allocating fundraisers for them on church grounds294. The Catholic Church as an institution monetarily supports pro-life groups, like the Obria295 clinic as recently as 2019. Its response to Roe v. Wade296 was multifaceted. Firstly, the Church immediately condemned the decision, calling it “a monstrous injustice”297 and “[catastrophic] for America.”298 Going further, the National Conference of 285 ID 286 ROE AT 410 287 ID 288 ABORTION POLICY IN THE ABSENCE OF ROE GUTTMACHER INSTITUTE, HTTPS://WWW.GUTTMACHER.ORG/STATE-POLICY/EXPLORE/ABORTIONPOLICY-ABSENCE-ROE

289 ROE AT 410 290 ID 291 ID 292 ZAID W. MUNSON, THE MAKING OF PRO-LIFE ACTIVISTS: HOW SOCIAL MOVEMENT MOBILIZATION WORKS (UNIVERSITY OF CHICAGO PRESS) (2008)

293 ABORTION AND CATHLIC THOUGHT. THE LITTLE-KNOWN HISTORY CONSCIENCE (WASHINGTON, D.C), HTTPS://PUBMED.NCBI.NLM.NIH.GOV/12178868/

294 8 KEY FINDINGS ABOUT CATHOLICS AND ABORTION PEW RESEARCH CENTER, HTTPS://WWW.PEWRESEARCH.ORG/FACT-TANK/2020/10/20/8-KEYFINDINGS-ABOUT-CATHOLICS-AND-ABORTION/

295 CATHOLIC BISHOPS FUND ANTI-CHOICE ‘CLINICS’ SET TO RECEIVE TRUMP TITLE X FUNDING - REWIRE NEWS GROUP - RELIGIOUS DISPATCHES REWIRE NEWS GROUP, HTTPS://REWIRENEWSGROUP.COM/RELIGION-DISPATCHES/2019/04/02/CATHOLIC-BISHOPS-FUND-ANTI-CHOICE-CLINICS-SET-TORECEIVE-TRUMP-TITLE-X-FUNDING/

296 ROE AT 410 297 SECRETARIAT FOR PRO-LIFE ACTIVITIES, 2022. [ONLINE] USCCB.ORG. HTTPS://WWW.USCCB.ORG/ISSUES-AND-ACTION/HUMAN-LIFE-ANDDIGNITY/ABORTION/UPLOAD/STATEMENT-OF-THE-COMMITTEE-FOR-PROLIFE-AFFAIRS.PDF

298 ID

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Catholic Bishops tasked Monsignor James McHugh to aid the Church in its efforts to increase prolife participation. His advisory group, meant to document pro-choice laws and legislation, ended up turning into an ad-hoc organization dedicated to legally challenging Roe299 was formed. A taxexempt lobby and Church funded group,300 The NCHLA - National Committee for a Human Life Amendment - was formed. Fifty-thousand dollars were put into the committee to “initiate and coordinate a program of information”301 that would be disseminated to Catholics, full of information about liberal legislation and state policies promoting abortions and their ease of access in certain states.

The NCHLA hoped to pass America’s twenty-eighth amendment to protect the lives of the unborn. It was unsuccessful, but had luck passing the Hyde Amendment in 1976,302 preventing the use of federal funding to pay for abortions except if the pregnancy resulted from a rape or incest or if the pregnant person’s life was in danger.303 Once the popularity of an amendment died down, the real group of interest came to popularity: the National Right to Life Committee [NRLC]. By 1980, the NRLC had a budget of $1.6 million and eleven million members.304 Fortune ranked them as the eighth most influential D.C. public policy group in 1999.305 Its popularity has waned over the years, sitting at about seven million members now. Its influence, however, has only increased.

Leadership in pro-life, conservative circles is significantly aided by the political action center of the NRLC which contributes to their campaigns. A schism between part of the committee occurred - when pro-life Democrats and pro-life Republicans struggled with the alt-right politicization of the right-to-life movement during the mid-1990s. In the 1996 election cycle, over two million dollars were allocated to pro-life political candidates nationwide.306 These officials have used their sizable influence to support the appointments of pro-life judges and the elections of pro-life political candidates at both the state and federal level.307 The physical manifestation of a fading line between the separation of church and state is perfectly encapsulated by Helen Osman, the communications consultant for the Texas Catholic Conference of Bishops.308 She said that, “people of faith, ‘the church’ have always been needed in politics.”309 Their complementary group, the Texas Right to Life group, is a lobby group that is “well-funded by GOP Donors” 310 and “its endorsement of candidates can fundamentally affect 299 ROE AT 410 300 THE NATIONAL RIGHT TO LIFE COMMITTEE: ITS FOUNDING, ITS HISTORY, AND THE EMERGENCE OF THE PRO-LIFE MOVEMENT PRIOR TO ROE V. WADE, THE CATHOLIC HISTORICAL REVIEW, HTTPS://PUBMED.NCBI.NLM.NIH.GOV/22069796/

301 ID 302 VOTERVOICE.NET. 2022. NCHLA HOME. [ONLINE] HTTPS://WWW.VOTERVOICE.NET/MOBILE/NCHLA/HOME 303 THE HYDE AMENDMENT AND COVERAGE FOR ABORTION SERVICES KFF, HTTPS://WWW.KFF.ORG/WOMENS-HEALTH-POLICY/ISSUE-BRIEF/THEHYDE-AMENDMENT-AND-COVERAGE-FOR-ABORTION-SERVICES/

304 OPPOSITION AND INTIMIDATION: THE ABORTION WARS & STRATEGIES OF POLITICAL HARASSMENT, HTTPS://ARCHIVE.ORG/DETAILS/OPPOSITIONINTIMI00DOAN

305 FORTUNE 500 FORTUNE, HTTPS://FORTUNE.COM/FORTUNE500/1999/ 306 NATIONAL RIGHT TO LIFE COMMITTEE ABORTION, NRLC, LEGISLATION, AND WOMEN - JRANK ARTICLES, HTTPS://LAW.JRANK.ORG/PAGES/8739/NATIONAL-RIGHT-LIFE-COMMITTEE.HTML

307 LOBBYING FOR THE UNBORN: THE AMERICAN CATHOLIC CHURCH AND THE ABORTION ISSUE MÉMOIRE(S), IDENTITÉ(S), MARGINALITÉ(S) DANS LE MONDE OCCIDENTAL CONTEMPORAIN. CAHIERS DU MIMMOC, HTTPS://JOURNALS.OPENEDITION.ORG/MIMMOC/2320

308 CATHOLIC CHURCH CUTS TIES WITH TEXAS’S LARGEST PRO-LIFE GROUP FRANCE-24, “PEOPLE OF FAITH ‘THE CHURCH’ HAVE ALWAYS BEEN NEEDED IN POLITICS,” SAYS HELEN OSMAN, COMMUNICATIONS CONSULTANT FOR THE TEXAS CATHOLIC CONFERENCE OF BISHOPS.

309 ID 310 ID

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elections.” 311 As a corporation, every group has the ability to support whichever candidate and political party they wish, under Citizens United v. FEC312 and the Federal Election Campaign Act.313 Yet, there is no exemption for the Church to cross their First Amendment boundary to do so. Using Church and GOP finances to help elect pro-life politicians in accordance with Church doctrine is well outside the scope of the Constitution and goes against the founding principles of this country.

Advocates both pro and anti-abortion have had considerable influence and support from groups since Roe314. Yet, the Catholic Church and its increasingly hostile view towards the separation of Church and State has worked to support these pro-life groups as a way to continue fighting against the pro-choice movement and bringing legal challenges against laws that ease access to abortions.

III.

POLAND

A. The Catholic Church As Poland’s Ally After the fall of the Berlin Wall, Poland was in an especially precarious situation as a nation. One-hundred twenty three years of partition and forty-four years of Soviet control had passed and for the first time in a long time, the Polish people were finally in a position to rule themselves, independent of any foreign control. As such, the Polish government was looking for internal allies and domestic cooperation to prop up control of their people and show the West their governing capabilities. One great ally who always served them well and aided them out of Soviet rule: the Catholic Church. Coincidentally, the Church and its Polish Pontiff were undergoing peak moral authority in Poland. In the late 1980s, 95% of Poles trusted the Catholic Church as an institution and as a public activist.315 Even today, nearly nine of ten people identify as Catholic, with 45% attending weekly Mass.316 Poland’s nationalism coexists with its religiosity, and in the post-Soviet era, the Catholic Church was seen as “the only legitimate institutional counterpart to the state.”317 The government and the Church rekindled their mutually beneficial, reciprocal relationship, making good use of their alliance once again. Their connection began with Poland’s conversion to Catholicism under Prince Mieszko I in 966.318 Since then, Poland has used the Church and its doctrine to enforce laws, bolster foreign relations, unify people and gain its independence in 1918. The Catholic Church has found Poland to be an ally in Central Europe during periods of anti-Catholic sentiment and has consistently relied on them to push their 311 ID 312 CITIZENS UNITED V. FEC, (2010) 558 U.S. 310 313 FEDERAL ELECTIONS CAMPAIGN ACT OF 1971, 52 U.S. CODE § 30101 314 ROE AT 410 315 PERSISTENCE AND CHAANGE IN MORALITY POLICY: THE ROLE OF THE CATHOLIC CHURCH IN THE POLITICS OF ABORTION IN IRELAND AND POLAND JOURNALSSAGEPUB, HTTPS://JOURNALS.SAGEPUB.COM/DOI/PDF/10.1177/0141778919894451

316 RELIGIOUS BELIEF AND NATIONAL BELONGING IN CENTRAL AND EASTERN EUROPE PEW RESEARCH CENTER’S RELIGION AND PUBLIC LIFE PROJECT, HTTPS://WWW.PEWFORUM.ORG/2017/05/10/RELIGIOUS-BELIEF-AND-NATIONAL-BELONGING-IN-CENTRAL-AND-EASTERN-EUROPE/

317 PERSISTENCE AND CHAANGE IN MORALITY POLICY: THE ROLE OF THE CATHOLIC CHURCH IN THE POLITICS OF ABORTION IN IRELAND AND POLAND JOURNALSSAGEPUB, HTTPS://JOURNALS.SAGEPUB.COM/DOI/PDF/10.1177/0141778919894451

318 NEW CATHOLIC ENCYCLOPEDIA ENCYCLOPEDIA.COM, HTTPS://WWW.ENCYCLOPEDIA.COM/RELIGION/ENCYCLOPEDIAS-ALMANACSTRANSCRIPTS-AND-MAPS/POLAND-CATHOLIC-CHURCH

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conservative agendas. The government knew that post-conflict and post-Soviet rule, gender roles in Polish families were skewed319 and did not conform to the traditionalist views previously entrenched.320 This worried the Church, who wished to remain Poland’s strong, traditional, conservative ally and felt that they needed the support of the Polish people to continue in that role.

For the Catholic Church and Pope John Paul II, it was imperative that Polish family values remained in place. Abortion became a watershed issue that solidified the importance of conservative, traditional values. Already a “sticky subject”, the issue of abortion remained imprinted on the minds of Poles as something they had never had authority over. Before 1993, Poland allowed abortions during the Nazi-era and then again under Soviet rule in 1956. The goal of abortions under the Nazi regime was to “[limit] the fertility of Poles.”321 Some Poles to this day associate pro-choice legislation with that slightly-genocidal policy. Looking at the legislative history of abortion in Poland, it will become how the Church has interfered with it and why it remains such a divisive issue.

B. Polish Legislation The Penal Code of 1932322 granted doctors and physicians the ability to perform abortions on pregnant persons if the “pregnancy resulted from a criminal offense or gravely threatened the health of the person[woman].”323 Twenty seven years later, the necessary conditions became moot and abortions were available as requested. It is important to denote that abortions took the form of primary birth control for many persons in this stage. Preventative birth control was not a prevalent or common practice in the nation, and abortions filled the gap for persons who experienced difficult living conditions. Abortions were commonly seen as healthcare and birth control, as its prevalence was not common. As recently as 2014, contraceptives are used by 47.7% of married women, ages fifteen to forty-nine.324 Poland was able to renege on pro-abortion laws after their government was independent, completely separate of Soviet Control. As soon as December 1991, the Code of Medical Ethics was endorsed by the Supreme Chamber of Medicine. This Code permitted abortions in the case of suspected crime or on medical grounds.325 Another marker of the Code was its enforcement of the conscience clause and its extension to IVF[in-vitro fertilizations]; this refers to physicians or doctors being allowed to reject performing abortions or other medical services should their consciences or religions prevent them from doing so. This was a loophole the Church required for the passage of this Code, as well as provided political support to the present majority party: the Chrześcijański Związek Jedności Narodowej [Christian Democratic Union].326

319 CIVIL WAR AND FEMALE EMPOWERMENT - PEACE RESEARCH INSTITUTE OSLO, HTTPS://WWW.PRIO.ORG/PUBLICATIONS/12589 320 AS POLAND’S CHURCH EMBRACES POLITICS, CATHOLICS DEPART REEUTERS, HTTPS://WWW.REUTERS.COM/ARTICLE/US-POLAND-CHURCHINSIGHT/AS-POLANDS-CHURCH-EMBRACES-POLITICS-CATHOLICS-DEPART-IDUSKBN2A30SN

321 POLAND, ABORTION, AND THE ROMAN CATHOLIC CHURCH LAWDIGITALCOMMONS, HTTPS://LAWDIGITALCOMMONS.BC.EDU/CGI/VIEWCONTENT.CGI?ARTICLE=1308&CONTEXT=ICLR

322 KODEKS KARNY 1932 323 ID 324 ABORTION IN POLAND: POLITICS, PROGRESSION, AND REGRESSION JSTOR, HTTPS://WWW.JSTOR.ORG/STABLE/26605058 325 KILLING ‘UNBORN CHILDREN’? THE CATHOLIC CHURCH AND ABORTION LAW IN POLAND SINCE 1989 JOURNALSSAGEPUB, HTTPS://JOURNALS.SAGEPUB.COM/DOI/PDF/10.1177/0964663916668247

326 ID

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1993 marks the passage of the Family Planning Act327, or the Protection of the Human ‘Foetus’ and Conditions Permitting Pregnancy Termination Act. This law is also known as “the Abortion Compromise” because of the delicate balance of access to abortion and the appeasement of the Church. This alliance with the Church on this particular issue came as a result of the “debt” the Polish government owed the Church “for its role in dismantling the communist regime.”328 The categories for abortion were then changed to: endangering the life or health of the person “until such time as the foetus is capable of surviving outside the [parent’s] body”, 329 in cases where “prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life threatening disease”, 330 and up until twelve weeks gestation when the pregnancy was strongly suspected to be a result of a criminal act.

Three years later, an amendment added a fourth instance: persons in difficult living conditions or experiencing personal situations.331 Along with this requirement, a three day waiting period was encased. It lasted only a year before the Trybunał Konstytucyjny found it illegal. Although this act did not criminalize people who sought to abort their fetuses or those who did get abortions, that legal doctrine is no longer accurate.332 As of October 2020, the Tribunal Konstytucynjy declared the 1993 Family Planning Act unconstitutional.

C. Polish Jurisprudence on Abortion The Constitutional Court, or Trybunał Konstitucyjny, handed down two important decisions that significantly altered the meaning of abortion access to Poles since 1997. Recall the 1996 amendment, to permit a fourth criteria for persons in difficult living conditions or experiencing personal situations.333 The Trybunał struck that criteria down, citing the Constitution’s focus on the right of life of all persons. Andrzej Zoll wrote that, “[the law allowed abortions] at the subjective wish of a [person] who considers [themselves] in a difficult personal or social situation.”334 Of note was the timing of this decision, as Pope John Paul II was scheduled for an eleven day visit just two days later. Since then, the Trybunał has undergone changes to its makeup since the Prawo i Sprawiedliwość Party [PiS]’ rise to a political majority in 2015. Poland’s government has been accused of not following its own constitutional process as well as the European Union’s by appointing politically aligned PiS judges - essentially “[enabling] the executive and legislative branches to interfere in the composition, powers, administration and functioning of the judicial branch.”335 In 2020, PiS asked the Trybunał to determine the issue of abortion, as its legislation was no closer to being passed and its allies were eager to see results.

327 [USTAWA O PLANOWANIU RODZINY, OCHRONIE PŁODU LUDZKIEGO I WARUNKACH DOPUSZCZALNOŚCI PRZERYWANIA CIĄŻY] (DZ. U. 1993 NR 17 POZ. 78).

328 PERSISTENCE AND CHAANGE IN MORALITY POLICY: THE ROLE OF THE CATHOLIC CHURCH IN THE POLITICS OF ABORTION IN IRELAND AND POLAND JOURNALSSAGEPUB, HTTPS://JOURNALS.SAGEPUB.COM/DOI/PDF/10.1177/0141778919894451

329 ID 330 ID 331JOURNALSSAGEPUB, SUPRA 75 332 ID 333 JOURNALSSAGEPUB, SUPRA 75 334 POLISH COURT VOIDS LIBERAL LAW NYTIMES, HTTPS://WWW.NYTIMES.COM/1997/05/29/WORLD/POLISH-COURT-VOIDS-LIBERAL-ABORTIONLAW.HTML

335 COMMISSION V. POLAND: WHAT HAPPENED, WHAT IT MEANS, WHAT WILL IT TAKE VERFASSUNGSBLOG, HTTPS://VERFASSUNGSBLOG.DE/COMMISSION-V-POLAND-WHAT-HAPPENED-WHAT-IT-MEANS-WHAT-IT-WILL-TAKE/

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This and the majority PiS-leaning makeup of the court has called into question their October 2020 ruling, declaring the 1993 Family Planning Act unconstitutional.

Chief Justice Przyłębska wrote that this legislation unequivocally violates the thirty-eighth article of the Polish Constitution. That article reads, “the inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.”336 Przyłębska continued that the 1993 Act’s criteria allowing for abortions to be performed in the instance of fetal damage is the unconstitutional component of the law. Approximately 98% of abortions in Poland were performed utilizing this now-stricken criteria. Now, the only three permissible criteria to terminate a pregnancy are: rape, incest, threat to a person’s health and life.

Following this ruling, a chilling effect was immediately felt by pregnant persons. Hospitals and abortion service centers canceled previously set-up abortions, for fear of the retributive consequences that were now enforceable.337 A direct consequence of the fear of service centers were the deaths of Agnieszka and Izabela, two anonymous women who died of sepsis after doctors waited too long to perform abortions after their fetuses died in utero.338 The doctors’ hesitation came from the potential of jail time, the consequence of performing an abortion outside the three permissible criteria, should a heartbeat have been detected or even possible. Following their deaths, hundreds of thousands of protesters339 lined the streets of Polish cities, to no avail; the ruling still stands. These women’s deaths are not uncommon; doctors have been terrified to work outside the very narrow scope of the Trybunał’s ruling. How many persons have died as a result cannot be measured.

D. The Catholic Church Within the Polish Government A recent poll found that 73% of Poles do not believe that the Church should endorse political candidates, and 75% of Poles believe that the Church should stay out of politics completely.340 The Church, losing members, its influence, and popular favor, began to rely on PiS which was currently in power to aid them with pro-life and pro-Catholic policies.341 PiS members are often seen at Sunday Mass and make it a point to be seen with influential Cardinals and Bishops. They also consult them in political contexts, something PiS politicians advertise.342 The Church is often in the middle of hotly contested political debates - somewhat by their own design.

Their desire to cooperate so closely with the Polish government and hopes that Polish laws acutely follow Catholic doctrinal law inadvertently forces them into the spotlight of political conversation.

When high-ranking Bishops endorsed anti-abortion legislation that failed in the Sejm or Senat 336 DZ.U. 1997 NR 78 POZ. 483 [POLISH CONSTITUTION] 337 PROSECUTORS PROBE PREGNANT WOMAN’S DEATH IN POLAND ASSOCIATED PRESS, HTTPS://APNEWS.COM/ARTICLE/CORONAVIRUS-PANDEMICABORTION-HEALTH-BUSINESS-POLAND-E2F817C0713B5E7CABE96B10F1D538F5

338 POLAND CLARIFIES ABORTION LAW AFTER PROTESTS OVER MOTHER’S DEATH BBCNEWS, HTTPS://WWW.BBC.COM/NEWS/WORLD-EUROPE59206683

339 POLAND’S ABORTION BAN SPURS LARGEST PROTEST IN DECADES NYTIMES, HTTPS://WWW.NYTIMES.COM/2020/10/30/WORLD/EUROPE/POLANDABORTION-WOMEN-PROTESTS.HTML

340 PERSISTENCE AND CHAANGE IN MORALITY POLICY: THE ROLE OF THE CATHOLIC CHURCH IN THE POLITICS OF ABORTION IN IRELAND AND POLAND JOURNALSSAGEPUB, HTTPS://JOURNALS.SAGEPUB.COM/DOI/PDF/10.1177/0141778919894451

341 THE CATHOLIC CHURCH AND ITS IMPACT ON PUBLIC POLICY IN CONTEMPORARY DEMOCRACIES - SCHOLARWORKS AT WMU, HTTPS://SCHOLARWORKS.WMICH.EDU/CGI/VIEWCONTENT.CGI?ARTICLE=4305&CONTEXT=DISSERTATIONS

342 ID

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[Lower or Upper Senate], some saw it as “putting the institutional interest of the Church at risk”343 and “intervening in politics”344 at too high a level. The prime question to be asked is whether the failure of the legislation in spite of Church-backing is the true institutional risk. Polish Bishops go beyond mere approval or rejection of anti-abortion initiatives.345 Rejection of a bill, regardless of how outlandish the language or how unlikely its ratification, is not often an option, as it is seen as a departure from Catholic dogma.346 That is too high a political price to pay for Polish politicians, who know that Catholic support is their political lifeline. An issue then arises for the Church: when to use their political capital. It is not politically possible, nor practical to support every antiabortion legislative measure in the country. This is especially true when more than one pro-life group takes up the task of drafting such legislation.347 From 2010-2015, four bills were written; three were proposed by pro-life groups that drafted them alongside the Church and its leadership.348 Again, the Church placed itself in the middle of this political debate by its own design, ensuring that any separation of Church and state existed on paper alone.

These pro-life groups are another way for the Catholic Church to insert their policies into the Polish government: such organizations have skyrocketed in popularity among Poles. They have a bona-fide way to generate membership and revenue: local parishes. Their objectives are to change the public’s understanding of abortion and to make it fully illegal, utilizing their political rights as citizens. The biggest pro-life group is Fundacja Pro[Foundation Pro]. From 2010 to 2015, Fundacja Pro launched three bills to restrict abortion access across Poland.349 The justifications of those legislations were threefold: when pregnancy was suspected resulting in an alleged criminal act, life or health of the pregnant person was in danger, and/or the fetus was damaged. The bills created by Fundacja Pro would have eliminated the first two categories and sought to impose a restriction on the third; damage would only “count” if Down Syndrome could be verified in the fetus.350 Such abortions are referred to as eugenic abortions.351 Not a single of their bill versions have been ratified, although the Church continues to host and financially contribute to them.

Instead of legislation being the source of abortion restrictions, the Tribunal Konstitucyjny has played the greatest role in limiting people’s reproductive rights.

The link between the Catholic Church and a decrease of recorded, performed abortions is well defined. From 1965 to 1989, approximately 2,056,830 abortions were recorded as performed in Poland.352 Right as the new government was installed and the Polish-Church alliance was reinstated, abortions dropped from 82,137 performed in 1989 to 11,640 in 1992.353 1997 saw the Konstytucynjy Tribunal’s striking down of abortions based on social grounds: a person’s living

343 ID 344 ID 345 SCHOLARWORKS AT WMU 346 ID 347 ID 348 ID 349 ID 350 ID 351 EUGENIC ABORTION: AN ETHICAL CRITIQUE CMAJ: CANADIAL MEDICAL JOURNAL ASSOCIATION = JOURNAL DE L’ASSOCIATION MEDICALE CANADIENNE, HTTPS://WWW.NCBI.NLM.NIH.GOV/PMC/ARTICLES/PMC1452135/

352 REVISITING POLISH ABORTION LAW: DOCTORS AND INSTITUTIONS IN A RESTRICTIVE REGIME - JOURNALS.SAGEPUB.COM, HTTPS://JOURNALS.SAGEPUB.COM/DOI/10.1177/09646639211040171

353 ID

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conditions or their mental state.354 That same year, 3,047 abortions were performed.355 In 2016, one thousand abortion were recorded as being performed; estimates of illegal abortions range from fifty-thousand to two-hundred thousand that year.356 Every time there is a decline of recorded abortions, a new ruling or decision was made restricting ease of access to abortions. 2016 saw one of the largest ever protests, labeled Czarny Protest [Black Protest], on the streets of Poland in opposition to a near total ban on abortions and a five year prison sentence to providers357. At least one in four Polish women under sixty-five has had an abortion, though not all have been legal nor in Poland.358 The number of abortions estimated are not decreasing; in fact, they have either increased or remained the same. Poland, in their attempts to criminalize providers and decrease ease of access, have pushed pregnant persons to seek harmful, illegal, sometimes foreign abortions instead. This is suspected to continue increasing as the severity of the restriction continues to remain in place.

IV.

A COMPARISON OF POLAND AND THE UNITED STATES

One of the greatest differences between Poland and the United States is the mechanism behind their anti-abortion crusades. Poland’s government through pro-life citizen-run groups has tried to use legislation to curtail the rights of persons to terminate their pregnancies. This has not been successful; their latest efforts, much like those before this, have failed. The Stop Abortion Now Bill, which attempted to declare abortion as homicide, was dead in the water as 368 opposed while only 48 agreed.359 Recall the four bills attempted from 2010-2015 alone. Instead, Poland’s success as a nation unfriendly to abortion has come alone from the decisions handed down by the Tribunal Konstytucyjny. The United States does not rely alone on the Supreme Court and lower courts decisions to limit ease of access to abortions. Instead, states pass legislation that prevent abortions from being performed and those laws’ constitutionalities are then tested by the courts.

Recall Dobbs v. Jackson Women’s Health Organization360. The case came before the court because the legality of the Mississippian law is questioned. Many states have had similarly circumstanced situations with their abortion laws. The U.S. has succeeded in reducing reproductive access to persons through states and the Supreme Court, alongside lower courts.

Another difference between Poland and the United States is the Church’s role in the crafting of legislation. The United States has a much more defined separation of church and state that, though questionable at times, does not ever come as close as Church leadership directly working with legislators to pass laws. Yet, Poland’s major political parties rely on the Catholic Church for funding and political support and have, as a result, bound themselves together - unable 354 THE STRUGGLE FOR ABORTION RIGHTS IN POLAND SXPOLITICS.ORG, HTTPS://WWW.SXPOLITICS.ORG/FRONTLINES/BOOK/PDF/CAPITULO5_POLAND.PDF

355 JOURNALS.SAGEPUB.COM at note 87 356 ABORTION IN POLAND: POLITICS, PROGRESSION, AND REGRESSION JSTOR, HTTPS://WWW.JSTOR.ORG/STABLE/26605058 357POLAND;S ABORTION BAN PROPOSAL NEAR COLLAPSE AFTER MASS PROTESTS THE GUARDIAN, HTTPS://WWW.THEGUARDIAN.COM/WORLD/2016/OCT/05/POLISH-GOVERNMENT-PERFORMS-U-TURN-ON-TOTAL-ABORTION-BAN

358 KILLING ‘UNBORN CHILDREN’? THE CATHOLIC CHURCH AND ABORTION LAW IN POLAND SINCE 1989 JOURNALSSAGEPUB, HTTPS://JOURNALS.SAGEPUB.COM/DOI/PDF/10.1177/0964663916668247

359 POLAND’S LAWMAKERS REJECT BILL SEEKING TO OUTLAW ABORTION ABC NEWS, HTTPS://ABCNEWS.GO.COM/HEALTH/WIRESTORY/POLANDSLAWMAKERS-REJECT-BILL-SEEKING-OUTLAW-ABORTION-81517099

360 DOBBS AT. 19-1392

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to separate governing from religiosity. American legislators have not crossed that barrier; the First Amendment’s Establishment Clause seems to work as a deterrent, preventing the Church in America from involving itself as heavily as in Poland. Pro-life groups have an extreme presence in both nations; their histories of political involvement seem to mirror one another. Both rose out of opposition to legislation or judgements that loosened restrictions previously placed on abortions on a national level. Along the support of the Church and its leadership, a large pro-life group was formed with a critical mass of financial and political support. Effectuating minimal change, sects of more radical members split themselves away from the central group and continue their advocacy work: all for one cause with different pathways to reach their goal.

V.

CONCLUSION

Democracy in its most pure form can only exist if a government is operating on a secular level. The way the Catholic Church is interweaving itself into the very core of Poland’s democratic institutions has already had negative consequences for its citizens. What’s worse is that the Church’s expressed purpose for its governmental incorporation is to embolden itself as a religious structure - not to help its Catholic congregation. A continual, ritual, and more brazen takeover of political functions by religious leadership may lead Poland down paths of authoritarianism or fascism in the aggregate. Regarding abortion, not only are the pro-life movements strengthened by the Church, they often work together to restrict abortion access and limit the number of those that perform them. In the United States, though less directly taking over the democratic process, the pro-life movement along with the Church are working to prevent abortions from being accessible to all persons. The greatest issue at the centerfold of both nations is that every legislation being passed, every judicial opinion being handed down directly impacts each person. The right of a person to terminate their pregnancy is their decision alone; to take away that right is to take away their liberty and the very essence of their bodily autonomy. This does not just impact persons pregnant now; for those that may become pregnant in the future, those who wish to become parents someday, and as citizens who now have less rights than before, these harmful laws and rulings trample on the very basic human rights all persons are born with.

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In God We Trust: The American Prioritization of the Church Through the State Taylor Blinebury Edited by Sarah Band

Does the U.S. Constitution truly separate church from state, or does this doctrine merely act as a medium to prioritize religious interests over secular rights? Despite the foundational intention to keep church and state separate in the United States, contemporary America finds itself in a state in which the Constitution is regularly manipulated to benefit religious organizations at the cost of Equal Protection rights for other groups. Primarily analyzing the recent Supreme Court case Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021) and Covid-19 cases, the article discusses the prevalent influence of religion on constitutional interpretation and judicial decision-making. Further, the article explores the potential consequences for the rights of American women and LGBTQ+ citizens if such exploitation of the First Amendment continues. As the nation nears the precipice of irrevocable change for the constitutional rights to privacy, individual autonomy, and discriminatory protection, one must consider whether the bible will ultimately prevail over the Constitution.

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I.

INTRODUCTION

Forewarned by George Washington, our nation finds itself detrimentally divided by partisanship, yet this very divisive nature was embedded in our Constitution and has since been allegedly upheld through the separation of church and state in the United States. Despite the romanticized notion that religion and politics are distinctive bodies immune to influence from the other, the United States government is intrinsically religious and intentionally exploits the Bill of Rights to advance the interests of religious organizations. This article demonstrates that through the holding, or decision, of Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021), the United States government abused the constitutional statutes of the separation of church and state to legally escape the Fourteenth Amendment and prioritize religious interests in American politics.

In Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021), the Supreme Court held, or determined, that the city of Philadelphia violated the Free Exercise Clause by refusing to contract with a Catholic foster organization that denied same-sex couples from the organization’s services.

Through a constitutional lens, the holding exploits the Establishment and Free Exercise Clauses of the First Amendment to compromise the Equal Protection rights of the Fourteenth Amendment.

Further, by authorizing public sexual discrimination, Fulton jeopardizes the Equal Protection precedents for LGBTQ+ citizens and exposes the dubious parameters of the government’s intertwinement with religion.

II.

FULTON V. THE CITY OF PHILADELPHIA

A. Background In 2018, following the publicization of the Archdiocese of Philadelphia’s statement that Catholic Social Services (CSS), a state-licensed Catholic foster service, does not consider samesex married couples as prospective foster parents, the City of Philadelphia employed an investigation into the organization’s practices as the organization is publicly contracted with the City. The City found that in refusing to acknowledge same-sex couples, CSS violated a “nondiscrimination provision in the agency's contract with the City,”361 and committed a violation of non-discrimination within Philadelphia’s Fair Practices Ordinance. Because of these violations, the City stated they would no longer partake in foster care contracts with the agency nor would they refer children to CSS so long as the agency refused to certify same-sex parents362. In response, Catholic Social Services and three associated foster parents brought legal action against the City and City departments on the grounds that the freeze of services violated the agency’s First Amendment rights to Free Exercise and Free Speech363.

Citing Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, the District Court found the non-discrimination provisions in the contract and the Fair Practices Ordinance to be neutral and generally applicable. Smith involved two claimants, Smith and Black, who were fired by a private drug rehabilitation company after ingesting peyote as part of a religious ceremony for their church. Following their dismissal, the claimants were denied unemployment 361

Fulton v. Philadelphia, 141 S. Ct. 1868, 1868 (2021).

Id. at 1868.

363 Fulton v. Philadelphia, 141 S. Ct. 1868, 1868 (2021).

362

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benefits as their use of drugs was deemed an act of “misconduct” under State employment law.

After several levels of court decisions, the Supreme Court ultimately held that the Free Exercise clause granted the State the right to criminally prohibit sacramental peyote use and “deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use.”364 Smith set a precedent that one’s right to Free Exercise does not allow relief from neutral and generally applicable laws on the grounds that the law restricts or contradicts one’s religious beliefs or practices365. In the case of Fulton, the District Court could not legally justify CSS’s violations of neutral and generally applicable non-discrimination provisions because of their religious belief against same-sex marriage. As a result, the Court determined it was unlikely the plaintiffs could argue for a violation of Free Exercise, a decision that was affirmed, or ratified, by the Third Circuit Court. The plaintiffs challenged the use of Smith to protect the City’s actions and requested that the decision be reconsidered.366 B. Supreme Court Holding In the unanimous decision to reverse the prior decisions of the District Court and the Third Circuit Court, the Supreme Court primarily cited the violation of the Catholic Social Service’s First Amendment rights.367 In reversing a decision, the higher court determines the lower court’s decision to be wrong. The First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”368 Within this decree lies the foundational clauses that function in tandem to maintain the separation of religion and the United States government. The Establishment Clause implies that the government “may not favor one religion over another, or religion over irreligion.”369 Through assessment of the three-pronged Lemon Test,370 the city of Philadelphia was not found in violation of the Establishment Clause.

However, by identifying the Catholic organization as the victim of discrimination and disregarding the exclusion of same-sex couples, it could be argued that the Supreme Court favored “religion over irreligion”371 and consequently merged church with state.

The holding of Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021) read that by refusing to contract with CSS until they stopped discriminating against same-sex couples, Philadelphia violated the Free Exercise Clause. The Free Exercise Clause provides the right to practice religion “so long as the practice does not run afoul of public morals or a compelling governmental interest.”372 According to the Supreme Court, Philadelphia’s action of freezing their

364

Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 874 (1990).

Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990).

366 Fulton v. Philadelphia, 141 S. Ct. 1868, 1869 (2021).

367 Fulton v. Philadelphia, 141 S. Ct. 1868, 1870 (2021).

368 U.S. CONST. amend. I, § 1.

369 First Amendment - Establishment Clause - Government Display of Religious Symbols - American Legion V. American Humanist Ass’n, 133 HARV. L. REV. 262, 266 (2019).

370 Id. at 262.

371 Id. at 266.

372 First Amendment and Religion, UNITED STATES COURTS, https://www.uscourts.gov/educational-resources/educational-activities/first-amendmentand-religion.

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contract with the foster care service “burdened CSS’s religious exercise.”373 The City froze the contract because CSS was violating the contractual nondiscrimination requirement and the Fair Practices Ordinance. CSS then argued that to comply with the City’s law and certify same-sex couples as foster parents, their Catholic belief against same-sex marriage would be compromised.

The unanimous decision in support374 of this claim justifies the validity of the violation of the Free Exercise Clause and the triggering of strict scrutiny. However, the verdict seems to forsake that by protecting the Catholic organization, the Supreme Court legally violates the Fourteenth Amendment and condones the public practice of discrimination based on sexual orientation.

III.

CONSTITUTIONAL JUSTIFICATION OF AN EQUAL RIGHTS VIOLATION

Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021) demonstrates the defense of religion with the First Amendment at the cost of the Fourteenth Amendment rights of the public.

Despite Pennsylvania’s lack of “laws prohibiting discrimination based on gender identity or sexual orientation,”375 constitutional Equal Protection is federally mandated. Under the Fourteenth Amendment, the State cannot “deny to any person within its jurisdiction the equal protection of the laws.”376 When evaluating discrimination under Equal Protection, the judicial system must assess the balance between individual rights and governmental interests.377 Considering these components and the criteria of the law, the discriminatory act is determined to trigger one of three levels of judicial review: strict, intermediate, or rational basis scrutiny. The consequential Fourteenth Amendment violation of Fulton v. Philadelphia, under the ambivalence of the Constitution, can be understood to trigger either intermediate or strict scrutiny.

A. Intermediate Scrutiny In the case of Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021), the holding effectively denies same-sex couples the right to foster care through Catholic Social Services. While CSS is a private organization, it is contracted through, and further receives clients, through the public institutions of the city of Philadelphia. In tandem with the eventual establishment of Title IX, the Fourteenth Amendment protects the law that entities that “receive Federal financial assistance” are forbidden from “discriminating against individuals on the basis of sex.”378 As of 2017, 35% of Pennsylvania’s general revenue came from Federal financial assistance and was used towards public services and goods,379such as the Philadelphia Commission on Human Relations, the Department of Human Services, and the City of Philadelphia- all of which are directly 373

Fulton v. Philadelphia, 141 S. Ct. 1868, 1872 (2021).

Fulton v. Philadelphia, 141 S. Ct. 1868, 1884 (2021).

375 Amy Castro Baker, Street-Level Bureaucrats and Intersectional Policy Logic: a Case Study of LGBTQ Policy and Implementation Barriers, 1 JOURN. O. POL. PRAC. A. RES. 96, 97 (2020).

376 U.S. CONST. amend. XIV, § 1.

377 Brandon L. Bartels, The Constraining Capacity of Legal Doctrine on the U.S. Supreme Court, 103 AM. POL. SCI. REV. 474, 476 (2009).

378 20 U.S.C.A. § 1681.

379 Janelle Cammenga, Which States Rely Most on Federal Aid?, TAX FOUNDATION (Feb. 12, 2020), https://taxfoundation.org/state-federal-aid-reliance-2020/.

374

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contracted to Catholic Social Services. Historically, violations of equal protection through discrimination based on sex have been classified to trigger intermediate scrutiny. Therefore if the phrase “sex” in Title IX is understood to include sexual orientation, in addition to gender identity, intermediate scrutiny could be triggered by the denial of public services to same-sex couples. As a result, by discriminating based on sexual orientation by proxy of their contract with CSS, the city of Philadelphia triggers intermediate scrutiny and violates the Fourteenth Amendment.

B. Strict Scrutiny Alternatively, there is a compelling reason to argue that sexual orientation is not included with gender identity in the phrase “sex”380, which could effectively cause the decision of Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021) to trigger strict scrutiny. Sexual preference could be understood as a private interest of the individual, which under Roe v. Wade 93 S. Ct. 705 (1973) if violated by the government, “requires the standard of strict scrutiny to review concerning legislation.”381 Initially seeking injunctive relief, plaintiff Roe challenged the constitutionality of Texas criminal abortion law that illegalized abortions for any reason other than to save the mother’s life.382 However, this case revolutionized women’s rights and body autonomy under the Constitution by determining the Texas law was unconstitutional, establishing the legal right to an abortion, and clarifying the constitutional right to privacy.383 Concerning Fulton, the sexual orientation of prospective foster parents would be considered a private interest that, if used as a reason for discrimination, would effectively trigger the highest judicial review of Equal Protection.

Similar to Roe, Griswold v. Connecticut 85 S.Ct. 1678 (1965) aided in constitutionally defining and legitimizing privacy and autonomy protections. In establishing a birth control clinic, defendants Griswold and Buxton were charged with violating Connecticut law that banned the use of contraceptives.384 The Supreme Court held that the “birth control law unconstitutionally intrudes upon the right of marital privacy.”385As established in Griswold and further upheld by Roe, these constitutionally protected interests of autonomy specifically include “intimate matters of sex and family planning”386. In the context of Fulton, the couples being discriminated against are constitutionally entitled to privacy in their sexual privacy and are directly involved in family planning, therefore implying that the City’s discrimination triggers strict scrutiny. Contrary to the notion that the United States legislates and governs to separate church and state, Fulton exposes the State’s tendency to advance religious interests by exploiting the First Amendment to take precedent over other “unalienable rights”387 and corrupting the Constitution.

IV.

FULTON’S DISMISSAL OF SUPREME COURT PRECEDENTS

380

20 U.S.C.A. § 1681.

Kory Schaff, Equal Protection and Same-Sex Marriage, 35 JOURN. O. SOC. PHIL. 133, 135 (2004).

382 Roe v. Wade, 93 S. Ct. 705, 707 (1973).

383 Id. at 708.

384 Griswold v. Connecticut 85 S.Ct. 1678, 1680 (1965).

385 Id. at 1686.

386 Kory Schaff, Equal Protection and Same-Sex Marriage, 35 JOURN. O. SOC. PHIL. 133, 135 (2004).

387 The Declaration of Independence para. 2 (U.S. 1776).

381

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The decision of Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021) is not likely to be reversed. Thus, it is imperative to discuss the implications of the holding for Equal Protection and the integrity of the Constitution as a foundational governing doctrine. Within the last forty years, LGBTQ+ Americans have tirelessly fought to be included under Equal Protection rights.

Specifically, precedents established through cases such as Romer v. Evans, 116 S.Ct. 1620, (1996) and Obergefell v. Hodges, 135 S.Ct. 2584, (2015) have provided protections from discrimination based on sexual orientation.

A. Landmark LGBTQ+ Rights Cases In Romer v. Evans, 116 S.Ct. 1620, (1996), the Supreme Court held that a Colorado constitutional amendment to “bar any governmental entity in the state from protecting gays, lesbians, or bisexuals from discrimination based on sexual orientation”388 violated the Equal Protection Clause. Following an increase of municipality-enforced ordinances that banned discrimination based on sexual orientation in Colorado, adversarial voters adopted “Amendment 2” to the State Constitution, which effectively prevented any “legislative, executive, or judicial action designed to protect homosexual persons from discrimination.”389 Romer rose to the Supreme Court when victims of the amendment and municipalities challenged the constitutional viability of the amendment, claiming that it inherently violated their Fourteenth Amendment rights.

Ultimately, the Supreme Court affirmed this notion and recognized that such an amendment triggered strict scrutiny390.

The Romer v. Evans, 116 S.Ct. 1620, (1996) decision is understood to be monumental for the LGBTQ+ community as it provided federal protection to these individuals on the basis of sexual orientation and recognized that discrimination against sexual orientation can be subject to strict scrutiny. Fulton, however, has proven that these rights can now be legally denied when in conflict with religion. Nearly thirty years later, the holding of Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021) nearly identically repeats the history of Romer by denying a public service to LGBTQ+ Americans. By permitting the city of Philadelphia to specifically discriminate against citizens who are part of same-sex marriages, Fulton directly contradicts Romer, excludes LGBTQ+ citizens from the Equal Protection rights endowed to them in 1996, and ignores a past precedent of strict scrutiny.

The Equal Protection Clause was extended even further for LGBTQ+ Americans in Obergefell v. Hodges, 135 S.Ct. 2584, (2015), which held that “the Fourteenth Amendment required every state to perform and to recognize marriages between individuals of the same sex.”391 Simultaneously, throughout Michigan, Kentucky, Ohio, Tennessee, and Maryland, plaintiffs challenged legislative bans on same-sex marriage and bureaucratic practices of denying recognition of same-sex marriages. In nearly every case, while the judgments were made in the plaintiff’s favor, each state appealed. As a result, Obergefell came to the Supreme Court as a consolidation of the pro-same-sex marriage cases and as a representation of the movement for the federal and legal recognition of same-sex marriages.392 In a five to four decision, the Supreme 388

Jane S. Schacter, Romer V. Evans and Democracy’s Domain, 50 VAND. L. REV. 361, 363 (1997), Mar. 1997.

Romer v. Evans, 116 S.Ct. 1620, 1621 (1996).

390 Romer v. Evans, 116 S.Ct. 1620, 1622 (1996).

391 Kenji Yoshino, A New Birth of Freedom?: Obergefell v. Hodges, 129 HARV. L. REV 147, 147(2015).

392 Obergefell v. Hodges, 135 S.Ct. 2584, 2584 (2015).

389

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Court held that all American citizens, regardless of sexual orientation, are constitutionally entitled to the right to marry through the Due Process and Equal Protection Clause of the Fourteenth Amendment.393 Occurring only six years after the Obergefell v. Hodges, 135 S.Ct. 2584, (2015) decision, this landmark case did not influence the outcome of Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021) as the strict scrutiny triggered by CSS’s deliberate denial of rights to both married and unmarried same-sex couples was flippantly dismissed under the guise of protecting the Free Exercise Clause. In placing religion as superior to Equal Protection and the rights of LGBTQ+ Americans, the Supreme Court not only ignores Obergefell but outright rejects the American precedent that same-sex marriages are legally viable, equal, and recognizable. In this case, the government abandoned the separation of church and state by subscribing to the Catholic Church’s belief that “marriage is a sacred bond between a man and a woman,”394 The impact of the American intertwinement of religion in Fulton is demonstrated through the regression of acknowledgment and rights for LGBTQ+ citizens.

B. Individual Autonomy, Privacy, and Women’s Rights Cases Unfortunately, this stark rejection of a landmark case and blatant prioritization of religion over the rights of minority groups may be the impetus for the deterioration of critical Supreme Court decisions, and with it, the integrity of the Constitution. As of late, the foundational decision of Roe v. Wade 93 S. Ct. 705 (1973) for American women’s rights and autonomy may be in jeopardy with the enactment of the Texas Heartbeat Act. This state law prohibits women from having abortions past six weeks of their pregnancy and financially incentivizes Texas citizens to prosecute anyone who aids women in breaking this law.395 By entrusting enforcement of the law to the rights of private Texas citizens, this act has successfully evaded adversarial court challenges and has remained steadfast in its legal viability.

Pro-life advocacy of politicians and supporters is largely a manifestation of the intertwinement of religious beliefs and political action, as studies have found that “religious convictions seem vital to the direct action protests against abortion providers.”396 The Texas Heartbeat Act intrinsically rejects the right to an abortion, the right to personal autonomy, and the right to privacy from government interference established in Roe. Similar to Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021), should a challenge to the law occur in the Supreme Court, the Court could ignore the Equal Protection rights established Roe just as it ignored the rights established through Romer v. Evans, 116 S.Ct. 1620, (1996) and Obergefell v. Hodges. In continuing to exercise religious supremacy and forsaking the Constitution, the Supreme Court may federally affirm the Texas Heartbeat Act, adhering to the sixth commandment of the Bible that “Thou shalt not kill”397 rather than the Fourteenth Amendment of the Constitution.

V.

CONSTITUTIONAL PRIORITIZATION OF CHURCH ABOVE STATE

393

Obergefell v. Hodges, 135 S.Ct. 2584, 2591 (2015).

Fulton v. Philadelphia, 141 S. Ct. 1868, 1868 (2021).

395 Janice Hopkins Tanne, Texas Promises $10 000 for People Who Enforce the State’s New Limit on Abortions, BMJ., Jul. 2021, at 1, 1 (2021).

396 Eric Swank, Gender, Religion, and Pro-Life Activism, 13 POL. A. RELIG. 361, 366 (2020).

397 Exodus 20:2-17.

394

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The Supreme Court decision of Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021) declared that strict scrutiny triggered by a violation of religious rights takes greater priority than that triggered by the violation of Equal Protection. Despite the notion that each amendment in the Bill of Rights is equal to another, the ignorance of the consequences demonstrated in Fulton implied that when assessing cases, the Supreme Court recognizes the First Amendment as superior to Fourteenth Amendment. Specifically, the decision suggests that religious rights are more important than Equal Protection rights, which jeopardizes the entire basis of the separation of church and state upon which the United States was founded.

A. The Ambiguity of the Establishment Clause With every case in which religious organizations and beliefs are excused from Equal Protection laws, the line between church and state blurs and the integrity of the Constitution deteriorates. The recent trend of religious accommodations and exemptions, or immunity, from the Constitution, as witnessed in Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021), has challenged the restrictions imposed on the government by the Establishment Clause.398 Adapted by the Supreme Court to assess Establishment Clause violations, the Lemon Test requires that government interference in religious affairs must have a secular intention and refrain from “excessive entanglement between church and state.”399 The phrase “excessive” is not defined by specific parameters and is therefore subject to loose interpretation, which the Supreme Court has capitalized on in its’ First Amendment cases. In the case of Fulton, the Supreme Court’s secular intention and entanglement are questionable as their intervention strictly protected the religious exercise of Catholic Social Services at the cost of the public’s secular rights.

B. The Exploitation of the Free Exercise Clause to Exempt Religious Entities Similarly, in granting an exemption to religious organizations under strict scrutiny in Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021), the Court allowed religion to be treated differently than secular organizations, which has effectively “trigger[ed] heightened scrutiny regardless whether or how that exemption has been applied.”400 In a seemingly unrelated current event, similar demonstrations of religious favoritism have been recently revealed by the unprecedented legal challenges of the global pandemic. The rise of legal cases concerning Covid19 has exposed such prioritization through exemption from federal and state health mandates in cases such as S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, (2020) and Tandon v. Newsom, 141 S. Ct. 1294, (2021). In 2020, South Bay United Pentecostal Church was denied an injunctive relief from the California Covid-19 mandate that banned indoor services in high-risk counties. The Church brought action against the state on the grounds that the state restriction violated the Free Exercise Clause by inhibiting the congregation’s practice of spiritual worship 398

First Amendment - Establishment Clause - Government Display of Religious Symbols - American Legion V. American Humanist Ass’n, 133 HARV. L. REV. 262, 265 (2019).

399 First Amendment and Religion, UNITED STATES COURTS, https://www.uscourts.gov/educational-resources/educational-activities/first-amendmentand-religion.

400 Valerie Brannon, Fulton v. Philadelphia: Religious Exemptions from Generally Applicable Laws, CONG. RES. SERV. Jun. 2021, at 1, 4.

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and gathering. As a result, the Supreme Court held that the Clause was violated and effectively granted the church injunctive relief from the state capacity limit.401 Similarly in Tandon v. Newsom, 141 S. Ct. 1294, (2021), an at-home Bible study group with more than three households was found to be in violation of a state-capacity restriction. Citing that by allowing greater capacities in secular organizations, the Supreme Court held that the state was “...triggering strict scrutiny under the Free Exercise Clause,”402 and granted the group injunctive relief from the state capacity limit. In abiding by the First Amendment, the Supreme Court effectively permitted the exclusion of these groups from Equal Protection as the ruling jeopardized the state’s health and safety interests of the members of the church service and Bible group. By establishing immunity from the Constitution for religious purposes, the government is increasing the likelihood for religious organizations to succeed in employing constitutional evasion and explicitly favors religious interests over secular protections. The U.S. government has manipulated the First Amendment to act as an impenetrable force that authorizes the Supreme Court with unchecked limits on protecting religion.

VI.

CONCLUSION

While successful in protecting religious liberties, the Bill of Rights mandate to “...make no law respecting an establishment of religion,”403 has evolved into a mechanism to manipulate state and federal constitutional laws. Following People of State of Ill. ex rel. McCollum v. Bd. of Ed. of Sch. Dist. No. 71, Champaign Cty., Ill., 68 S. Ct. 461 (1948), Justice Jackson commented that the separation between church and state “...has become even more warped and twisted than [he] ever expected.”404 Sixty years later, the separation between church and state continues to degrade the integrity of the Constitution and evolve into the exclusion of the church from the state.

Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021) highlights the unequal distribution of alleged “unalienable rights,”405which consequently calls into question the relevancy of the Constitution if our rights are merely subjective to the Court’s personal preferences. Rooted in freedom from authoritarian control, the Constitution was ratified to establish a “wall of separation between church and state,”406 and to “prevent either minority or majority factions from seizing the reins of power.”407 Unfortunately, it is evident that despite the foundational doctrine’s intentions, religion has remained a faction that has an enduring relationship with United States law and politics.

The acknowledgment and honoring of Equal Protection is imperative to the adherence of the Constitution, and further, the maintenance of the equality and justice that the United States was conceived in. The Supreme Court of the United States is entrusted with the power of impartially interpreting the law and maintaining the pertinence of the Constitution to ensure that Americans’ rights are not being infringed upon or denied. However, through cases such as Fulton and the 401

S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020).

Tandon v. Newsom, 141 S. Ct. 1294,1294 (2021).

403 U.S. CONST. amend. I, § 1.

404 John Witte Jr, That Serpentine Wall of Separation, 101 MICH. L. REV. 1869, 1875 (2003), May 2003.

405 The Declaration of Independence para. 2 (U.S. 1776).

406 John Witte Jr, That Serpentine Wall of Separation, 101 MICH. L. REV. 1869, 1871 (2003), May 2003.

407 Alan Singer, Why Did the Founding Fathers Write the Constitution of the United States?, 2 OAH MAG. O. HIST. 25, 26 (1987).

402

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recent Covid-19 regulation exemptions, the Supreme Court’s holdings have demonstrated bias, rather than neutrality, in deliberately stripping individuals of their Fourteenth Amendment rights for the sake of advancing religious interests.

Inherent to impartial judgment, the Supreme Court is expected to maintain consistency in interpretation and utilize past precedents to inform their decisions. Therefore, in failing to acknowledge the triggering of strict scrutiny in Fulton, the Court fails to satisfy its role and compromises the nation’s trust in the judicial system on which the United States depends. Should such blatant religious bias in judicial decisions and government interferences continue, the purpose and viability of the Constitution will be meaningless under the supervision of corruption. To preserve the integrity of the Constitution and maintain a fair nation, Equal Protection precedents must be recognized and expected in both secular and religious activities.

Contemporary court holdings, like that of Fulton, exemplifies that with the influence of religion on judicial and legislative decisions, the constitutional protection of rights becomes moot.

Without integrity or relevancy, the Constitution can no longer serve as a beacon of protection, leaving those who do not align with the Court’s religious preferences susceptible to revocation of their rights. While this bleak concept initially sounds dystopian, Fulton and the Texas Heartbeat Act are essentially manifestations of our impending reality in which constitutional rights and citizens are explicitly not equal. Decision by decision, the Supreme Court is deconstructing the constitutional pillars critical to maintaining separation from the church and invalidating the rights of female and LBGTQ+ Americans.

The obvious unconstitutionality of the holding of Fulton v. the City of Philadelphia 141 S. Ct. 1868 (2021) is jarring, yet not surprising as the U.S. functions under the proverb “In God We Trust.” However, Fulton not only endangers the freedoms of LGBTQ+ Americans, but further imperils the separation of church and state that is integral to the rights of “life, liberty, and the pursuit of happiness.”408 In order to preserve the genuine equality our justice system has finally achieved, the United States government must take active steps to untangle itself from the restraints of religious influence. No longer can the government utilize the Establishment and Free Exercise Clauses as an escape clause to the Fourteenth Amendment. Nor can it continue to posit the church as the victim of the State while the very same religious organizations are acquiring exemptions from the Fourteenth Amendment. With evidence that the First Amendment’s protections of religion have evolved into a loophole for constitutional exemption from Equal Protection requirements, it is imperative that the Supreme Court uphold the distinction of church and state without privileging the Bible over the Constitution.

408

The Declaration of Independence para. 2 (U.S. 1776).

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The Threat of Partisan Lawfare Jonathan H. Wright Edited by Whitney Gassmann Menes

As the gulf between America’s opposing political camps continues to widen, legal conflict between and within the states, the federal government, and corporations becomes increasingly common, threatening the basic functionality of the American legal system as the law itself is distorted for political ends. It is necessary to determine the nature and severity of the danger posed by this trend. The rise of this partisan belligerence is undeniable: it can be seen in recent actions such as governmental litigation against companies that officials perceive as political enemies, lawsuits between federal, state and local authorities over policy disagreements, and an aggressive legal campaign surrounding the 2020 election.

There is a worrying likelihood that as the political climate continues to worsen, more serious forms of lawfare will become common, placing further strain on the country’s legal system. In this paper, I will examine several types of lawfare which appear likely to become more common in the United States, using prominent recent examples of legislation and litigation as case studies. Taking into account historical precedent, recent cases, and the people who make up the political and legal systems, I will examine the threat posed to the continued functionality of the U.S. legal system by each form of partisan legal warfare. In so doing, I will provide useful insights to those hoping to mitigate the damage caused by these trends.

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I.

INTRODUCTION

For the purposes of this paper, partisan lawfare refers to the use of the legal system to gain advantages for one’s political party or faction. Most lawsuits filed for political purposes do not contain any direct admissions of the intent to pursue political gain, and the lawyers arguing them generally pretend more credible motivations such as the defense of their clients or the protection of the constitution. As such, a lawsuit will be considered an example of partisan lawfare if partisan gain can be reasonably inferred as one of the motivations for the lawsuit based on the relevant and contemporaneous statements and actions of those who filed the suit, or of others meaningfully connected to those who filed the suit. With partisan lawfare defined, it is also necessary to provide a brief disclaimer about the nature of this paper’s claims about the dangers of lawfare. The argument of this paper is not that the existence of partisan lawfare in any form at all is a danger to the US legal system, as there have always been lawsuits with partisan motivations. Rather, the argument is that the inhospitable political climate has led to an increase in the frequency and intensity of lawfare, with this increase being the real source of the danger.

The rapid escalation of partisan lawfare presents a threat to everyone in the United States, not just attorneys or politicians. The legal system plays an essential role in the lives of ordinary people. Litigation can slow or halt the implementation of a federal law or regulation, altering the lives of all those affected by that law’s provisions. Changes in legal precedent redefine the relationships between powerful corporations and the society around them. Alterations to election law can even impact the perceived legitimacy of the government. It is imperative that an idea of the common good informs the thinking of both judges and litigators as they shape and reshape the laws. With the legal system increasingly hijacked for the purposes of lawfare, precedents are set and overturned haphazardly as a byproduct of political maneuvering, and everyone is forced to live with the consequences. As of now, the consequences have become too visible to ignore.

One of the earliest signs of today’s legal turmoil was the rising frequency of lawsuits between levels of government. The first indicators of trouble appeared towards the end of the Obama administration, with the situation continuing and intensifying under Trump. Dr. Paul Nolette’s database of multistate lawsuits against the federal government between 1980 and 2017 clearly illustrates that this level of friction between state and federal AGs is historically abnormal and rapidly worsening.409 Between the years 1980 and 2014, the number of lawsuits filed by multistate coalitions of AGs against the federal government remained small, with only 4.229 in an average year. This number did not fluctuate much either, with a median of 4 suits per year. In 2015, the decades-long peace was shattered. In that year, there were 13 multistate lawsuits, and in 2016, the number stayed the same. In 2017, during President Trump’s first year in office, the number almost tripled, with 37 suits launched by state AGs against the federal government. The average number of suits for the tumultuous 2015-2017 period was 21, a staggering increase relative to the years between 1980 and 2014.

The increase in intergovernmental lawsuits has not been limited to multistate suits against the federal government- there has also been frequent litigation by single states against the federal government, as well as by the federal government against state and local governments. Single state litigation usually takes the form of constant lawsuits by prominent states against a Presidential administration of the opposing party. During the Obama years, the conservative state of Texas 409

Paul Nolette, Federal-State Relations, CQ RESEARCHER (Apr. 27, 2018), https://library-cqpresscom.libproxy.chapman.edu/cqresearcher/file.php?path=/images/CQ_Researcher/r20180427-suitsurgelongdesc.html.

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sued the US government more than 30 times.410 During that time, Texas Attorney General Greg Abbott joked that “I go into the office in the morning. I sue Barack Obama, and then I go home.”411 During the Trump administration, California took over the role once filled by Texas. As of 2018, it had already sued the US government more than 30 times.412 California’s Attorney General Xavier Becerra “emerged as a megaphone for progressive values” against the Republican President, launching frequent challenges to federal immigration policy.413 He has filed lawsuits in response to almost all of the administration’s actions in this area, challenging the removal of DACA protections,414 the addition of a citizenship question to the census,415 the creation of the public charge rule,416 restrictions on asylum seekers,417 and detention of migrants at the USMexico border.418 The federal government has responded to these challenges with lawsuits of its own. During the Trump administration, US AG Jeff Sessions sued California several times, with a special emphasis on challenging the legality of CA’s controversial decision to become a sanctuary state.419 A trend of increasing multistate lawsuits is not necessarily proof of partisan lawfare, as there would need to be evidence that partisanship is causing the increase. Examining the statements of prominent Attorneys General provides this evidence. Federal and state AGs frequently make public statements in conjunction with the announcement of a new lawsuit. By examining the human element- the rhetoric and stated goals of the AGs- it is possible to understand what is motivating this flurry of litigation. One of the most prominent figures in federal suits against states and localities during the Trump administration was US AG Jeff Sessions. On March 7, 2018- while the federal government was fighting California over border enforcement- AG Sessions delivered a speech to the California Peace Officers’ Association in Sacramento. In the speech, he took an aggressive posture towards California, attacking political enemies and their policies in harsh terms.

410

Alan Greenblatt, Federal-State Relations, CQ RESEARCHER (Apr. 27, 2018), https://library-cqpresscom.libproxy.chapman.edu/cqresearcher/document.php?id=cqresrre2018042700&type=hitlist&num=11.

411 Id. 412 Id. 413 Patrick McGreevy, California voters are getting to know the state’s attorney general through his aggressive stance challenging Trump, L.A. TIMES, APRIL 15, 2018 12:05 AM PT. 414 Xavier Becerra, Attorney General Becerra Leads Multistate Amicus Brief to Protect DACA Recipients Against Unlawful Termination, STATE OF CALIFORNIA DEPARTMENT OF JUSTICE (Dec. 21, 2018), https://oag.ca.gov/news/press-releases/attorney-general-becerra-leads-multistate-amicus-brief-protect-dacarecipients.

415 Xavier Becerra, Attorney General Becerra Sues Trump Administration over Unconstitutional Decision to Add Citizenship Question on 2020 Census, STATE OF CALIFORNIA DEPARTMENT OF JUSTICE (Mar. 27, 2018), https://oag.ca.gov/news/press-releases/attorney-general-becerra-sues-trump-administration-over-unconstitutional.

416 Xavier Becerra, Attorney General Becerra Denounces Trump Administration’s Proposed Regulation on Public Charge, Fights for California Families, STATE OF CALIFORNIA DEPARTMENT OF JUSTICE (Dec. 11, 2018), https://oag.ca.gov/news/press-releases/attorney-general-becerra-denounces-trump-administration%E2%80%99sproposed-regulation.

417 Xavier Becerra, Attorney General Becerra Leads Multistate Amicus Brief Calling for Preliminary Injunction to Protect Asylum-Seekers, STATE OF CALIFORNIA DEPARTMENT OF JUSTICE (Dec. 6, 2018), https://oag.ca.gov/news/press-releases/attorney-general-becerra-leads-multistate-amicus-brief-calling-preliminary.

418 Xavier Becerra, Attorney General Becerra Leads Coalition Opposing Trump Administration’s Proposal Regarding Immigrant Children Detained by Federal Government, STATE OF CALIFORNIA DEPARTMENT OF JUSTICE (Nov. 7, 2018), https://oag.ca.gov/news/press-releases/attorney-general-becerra-leads-coalition-opposingtrump-administration%E2%80%99s.

419 Alan Greenblatt, Federal-State Relations, CQ RESEARCHER (Apr. 27, 2018), https://library-cqpresscom.libproxy.chapman.edu/cqresearcher/document.php?id=cqresrre2018042700&type=hitlist&num=11.

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While decrying what he saw as California’s disregard of federal supremacy, the US AG invoked the American Civil War: Immigration law is the province of the federal government. This Administration and this Justice Department are determined to make it work effectively for the people. I understand that we have a wide variety of political opinions out there on immigration. But the law is in the books and its purpose is clear. There is no nullification. There is no secession. Federal law is “the supreme law of the land.”

I would invite any doubters to Gettysburg, and to the graves of John C. Calhoun and Abraham Lincoln.420 Sessions went on to describe California’s sanctuary policy as “a radical, irrational idea that cannot be accepted” and accuse the mayor of Oakland of needlessly endangering the lives of law enforcement.421 The state AGs that sued the federal government during the Trump administration also had strong words for their opponents. At the head of a coalition of 18 attorneys general, New York State AG Eric Schneiderman joined the challenge to the President’s controversial travel ban by filing an amicus brief in two separate cases: Trump vs. IRAP and Trump vs. Hawaii. He announced the amicus brief in a short press release on his official website. In the press release, he described the administration’s policy as “unconstitutional, unlawful, and un-American.”422 The attitudes of AGs Abbott and Becerra have already been mentioned.

Interestingly, the phenomenon of partisan AGs is not limited to the deepest red or blue states. Rhetoric similar to that of Schneiderman, Abbot, and Becerra is becoming more common in states that are typically thought of as moderate. In Minnesota AG Keith Ellison’s frequent press releases announcing legal challenges to the Trump administration’s immigration policy, he has taken an accusatory, moralistic tone. Over several press releases, he insisted that the idea of a citizenship question on the 2020 census was “clearly prejudicial,”423 declared that “President Trump’s cruelty violates Minnesotans’ sense of decency,”424 and described a rule change speeding up the deportation process as “cruel, inhumane, and contrary to every value we as Minnesotans hold dear.”425 More recently, Ohio AG Dave Yost has been combative towards the Biden administration. When the DHS changed its guidelines for enforcement of civil immigration law, 420

Jeff Sessions, Attorney General Sessions Delivers Remarks at the 26th Annual Law Enforcement Legislative Day Hosted by the California Peace Officers' Association, DEPARTMENT OF JUSTICE (Mar. 7, 2018), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-26th-annual-law-enforcementlegislative-day.

421 Id. 422 Eric Schneiderman, A.G. Schneiderman Leads New SCOTUS Brief In Travel Ban Case, NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL (Sep. 19, 2017), https://ag.ny.gov/press-release/2017/ag-schneidermanleads-new-scotus-brief-travel-ban-case.

423 Keith Ellison, AG Ellison: ‘Every Minnesotan, no matter their citizenship or immigration status, must be counted,’ THE OFFICE OF MINNESOTA STATE ATTORNEY GENERAL KEITH ELLISON ( Jun. 27, 2019), https://www.ag.state.mn.us/Office/Communications/2019/06/27_Census2020.asp.

424 Keith Ellison, Attorney General Ellison: ‘President Trump’s cruelty violates Minnesotans’ sense of decency,’ THE OFFICE OF MINNESOTA STATE ATTORNEY GENERAL KEITH ELLISON, (Jul. 12, 2019), https://www.ag.state.mn.us/Office/Communications/2019/07/12_ICERaids.asp.

425 Keith Ellison, Attorney General Ellison fights radical new Trump Administration rule that puts legal residents at risk of deportation, THE OFFICE OF MINNESOTA STATE ATTORNEY GENERAL KEITH ELLISON, (Aug. 22, 2019), https://www.ag.state.mn.us/Office/Communications/2019/08/22_ExpeditedRemoval.asp.

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he warned that “illegal drugs and criminals are pouring into our neighborhoods, and now the federal government wants law enforcement to sit by and do nothing.”426 He has also suggested that vaccine mandates endanger the constitution,427 threatened legal action against GoFundMe after its seizure of funds meant for the Ottawa Freedom Convoy made international headlines,428 and accused the DOJ of “targeting concerned parents as if they were domestic terrorists”429 after a controversial memo was released that called for monitoring of anti-CRT protests at school board meetings. It appears that even the AGs of “purple” states are drifting towards the ideological poles.

It is important to realize that these are all state AGs, making public declarations on high profile issues, including cases that have gone to the supreme court. Statements like these set the tone for other actors in the legal field. With such fierce rhetoric from AGs, it appears that increasing partisanship is a major factor driving the escalating legal battle between levels of government.

This level of partisan conflict between state and federal governments has serious implications for the way the US legal system works. When the legal system is hijacked for partisan conflict and becomes a political tool rather than an impartial process, it does not stop setting precedents. This is especially true for the high-profile cases that state AGs involve themselves in.

The result is negative externalities for the Americans who must live under an increasingly unstable and distorted legal system. These lawsuits have already begun to reshape the country’s laws. One prominent example of this is New York vs. U.S. Department of Commerce. In response to the Secretary of Commerce’s decision to put a question about citizenship status on the 2020 Census, New York and several other states joined together to fight the decision in federal district court.

The district court ruled against including the question on the census. The case eventually made its way to the Supreme Court, which ruled against the administration, determining that the Secretary of Commerce’s “course of action was not supported by the evidence before him, and his stated rationale was pretextual.”430 The administration was forced to drop the citizenship question.

Multistate litigation directly impacted the way that the 2020 census would be conducted, which in turn impacted the apportionment of seats in the House of Representatives, indirectly impacting the laws of the United States in ways that are impossible to fully account for.

In the case of anti-sanctuary lawsuits, successful rulings have not even been necessary to cause significant change. As mentioned previously in this paper, the first years of the Trump administration saw a series of lawsuits by federal AG Sessions against states and localities that had declared themselves sanctuaries and refused to work with federal immigration authorities.

These lawsuits largely failed to achieve their objective of ending the sanctuary status of these localities, blocked by the anti-commandeering and anti-coercion doctrines of the 10th

426

Dave Yost, Attorney General Yost Sues to Stop Restrictions on ICE, OHIO ATTORNEY GENERAL, (Nov. 18, 2021), https://www.ohioattorneygeneral.gov/Media/News-Releases/November-2021/Attorney-General-Yost-Suesto-Stop-Restrictions-on.

427 Dave Yost, AG Yost Statement on Supreme Court Ruling to Stay Vaccine Mandate, OHIO ATTORNEY GENERAL (Jan. 13, 2022), https://www.ohioattorneygeneral.gov/Media/News-Releases/January-2022/AG-YostStatement-on-Supreme-Court-Ruling-to-Stay.

428 Dave Yost, Ohio #FreedomConvoy Donors Encouraged to Contact Attorney General Yost, OHIO ATTORNEY GENERAL (Feb. 5, 2022), https://www.ohioattorneygeneral.gov/Media/News-Releases/February-2022/OhioFreedomConvoy-Donors-Encouraged-to-Contact-At. 429 Dave Yost, AG Yost Joins Lawsuit Seeking Records Involving Federal Intimidation of Parents, OHIO ATTORNEY GENERAL (Mar. 4, 2022), https://www.ohioattorneygeneral.gov/Media/News-Releases/March2022/AG-Yost-Joins-Lawsuit-Seeking-Records-Involving-Fe. 430 Department of Commerce v. New York, No. 18-966. 1, 21 (2019).

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amendment.431 The failure of these lawsuits worked to reinforce the local autonomy afforded to states and localities in constitutional law, particularly regarding immigration policy. This shielded sanctuary states and sanctuary cities within states that were not opposed to their sanctuary status.

However, it had the unexpected effect of simultaneously enabling anti-sanctuary states to crack down on sanctuary localities within their borders. Confident in the newly reinforced protections afforded to them by the 10th amendment, states such as Texas, Alabama, Indiana, Iowa, Mississippi, North Carolina, and Tennessee have passed laws forcing localities to cooperate with federal immigration enforcement.432 The same precedent pro-federalism precedent that empowered state crackdowns also means that “local anti-sanctuary laws are ripe for proliferation.”433 This example illustrates that the changes caused by precedent set in these lawsuits can be surprising and counterintuitive. Regardless of one’s opinion on sanctuary cities or the 2020 census, it is clear that intergovernmental lawsuits can have a significant impact on the legal system.

With so many of these lawsuits being launched from both poles of the political divide, one can expect frequent and difficult to predict changes to the legal landscape. These lawsuits will occur virtually every time one party feels that the actions of the other party are substantially threatening its agenda. In the current political climate, it is easy to imagine how frequently the desire to use the legal system arises.

Political partisanship is also leading to litigation and legislation targeting businesses for political reasons, with profound implications for business law. Federal and multistate litigation against large corporations has been a phenomenon for a long time, carried out for perfectly benign reasons such as enforcing anti-trust laws and protecting consumers. However, in recent years, political motivations have come to the fore, with governmental litigators targeting businesses which they see as hostile to their party or their political agenda.

One area where this phenomenon is especially prominent is in Big Tech. Large technology firms such as Apple, Microsoft, Amazon, Facebook (now renamed Meta), and Alphabet (the parent company of Google) have gained dominant places in the nation’s economy and information ecosystem. This growing influence, coupled with increasing polarization, has resulted in acrimonious political debates over how these companies should use their power. As the “open and free speech ideal” that defined the early internet is challenged by “a widespread if not universal emphasis among the major platforms on creating ‘healthy’ and ‘safe’ speech environments,”434 issues of content moderation or censorship have become especially contentious. Republican and Democratic politicians alike have faced mounting pressure from voters to take action against Big Tech companies, though for varying reasons. Many Progressive Democrats view the tech industry’s current behavior as dangerous “precisely because it is not more actively altering its product to serve the public good”435 by monitoring and removing hate speech or misinformation.

There is a fear that if left unchecked, toxic online communication may undermine democratic norms. For Republicans, there is a concern that with a shift towards the management of the social media environment, “our nation will lose much of its freedom of thought, expression, and

431

Pratheepan Gulasekaram, Rick Su and Rose Cuison Villazor, Anti-Sanctuary and Immigration Localism, Vol 119, No. 3. COLUMBIA L.R. 1, 1 (2019).

432 Id. at 3-4.

433 Id. at 48.

434 Evelyn Douek, GOVERNING ONLINE SPEECH: FROM “POSTS-AS-TRUMPS” TO PROPORTIONALITY AND PROBABILITY, Vol. 121, No. 3. COLUMBIA L.R. 1, 6 (2021).

435 Adam J. White, Google.gov: Could an alliance between Google and government to filter facts be the looming progressive answer to “fake news”?, No. 55. THE NEW ATLANTIS 1, 32 (2018).

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dissent.”436 They view social media giants as politically liberal cartels that use concepts such as hate speech or misinformation as flimsy pretexts to censor their conservative ideological opponents. Though both parties pay lip service to anti-trust and privacy concerns and use these as legal justifications for litigation against Big Tech firms, it seems that this is often pretext, with political concerns as the primary driving force.

Anyone who has paid attention to the media cycles of the last few years will have developed a perception of the growing legal backlash towards the tech industry. The facts confirm this perception. State AGs are launching aggressive investigations of Big Tech companies to collect information that will be useful for future litigation. On September 9, 2019, “attorneys general from fifty states and territories convened a dramatic press conference on the steps of the U.S. Supreme Court, to let it be known they were beginning a coordinated investigation into anticompetitive practices in Google’s digital advertising operations.”437 Federal AGs are also on the attack, with the Justice Department and House Judiciary Committee launching investigations into Google.438 One can determine what is driving the lawsuits against these corporations by going directly to the human element. The statements of those advocating for such litigation are informative. On the right, one of the most prominent figures leading the charge against Big Tech is Senator Ted Cruz. The Senator has been vocal in his encouragement of litigation and legislation against social media giants. His statements focus on bias or censorship against conservatives, and outline a strategy based on targeting section 230.

For context, Section 230 is a statue created in 1996 as part of the Communications Decency Act. The statute’s main effect is to grant social media companies that moderate speech on their platform broad immunity from litigation.439 This immunity is derived from subsection C of the statute, entitled “Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material,” which contains the following provisions: (1) TREATMENT OF PUBLISHER OR SPEAKER.—No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) CIVIL LIABILITY.—No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in [subparagraph (A)].440 436

Alan M. Dershowitz, America’s New Censors, No. 19, HORIZONS: JOURNAL OF INTERNATIONAL RELATIONS AND SUSTAINABLE DEVELOPMENT 1, 1 (2021).

437 Max Fraser, Big Trouble for Big Tech, Vol 29. Issue 1. CUNY SCHOOL OF LABOR AND URBAN STUDIES (2019).

438 Id. 439 Valerie Brannon and Eric Holmes, Section 230: An Overview, CONGRESSIONAL RESEARCH SERVICE (Apr. 7, 2021), 4. https://crsreports.congress.gov/product/pdf/R/R46751.

440 Id. at 5.

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In practice, these provisions give large technology firms the ability to control access to content as if they were a publisher, but prevent them from being held responsible for objectionable usercreated content as a publisher would.441 Many Republicans, including the aforementioned Senator Cruz, wish to alter or repeal section 230 because they worry that it gives Big Tech firms the ability to censor disfavored viewpoints in the online public square. Cruz’s public statements reflect exactly this concern: During an April 2019 Congressional committee hearing titled “Stifling Free Speech: Technological Censorship and the Public Discourse,” Senator Ted Cruz (R-TX) blamed Section 230 for allowing social media companies to be biased against conservatives, with “a special immunity from liability … that nobody else enjoys other than Big Tech.”442 Senator Cruz’s views on the issue are also held by prominent colleagues in the party. Senator Marsha Blackburn, a Republican from Tennessee, has encouraged similar action against Tech companies.443 Even higher profile Republicans have echoed the claim that Big Tech is a political enemy that censors conservatives. For example, following his Twitter ban in the wake of January 6th, former President Donald Trump announced several section 230-oriented444 lawsuits against social media firms and their CEOs. At a press conference, he described the move as a defense of the first amendment rights of himself and others, promised that he was “going to hold big tech very accountable,” and warned that “if they can do it to me, they can do it to anyone.”445 These statements come from prominent figures within the Republican party. Cruz is a senator from the influential Republican state of Texas and a onetime presidential nominee. His views on Big Tech reach a large portion of Republican voters due to his frequent statements at publicized events such as the abovementioned congressional hearing. Anyone who has lived in the United States for the last several years knows the loyalty commanded by former President Trump.

He has millions of eager supporters, and members of the GOP still venture to his Florida residence to compete for his endorsement. Just as the statements of high-profile AGs previously examined in the paper indicated the general sentiment among AGs, statements by high-profile politicians in the Republican party indicate the general sentiment among Republicans. Most politicians tend to conform to the stances that prevail within their party, and those who do not conform are often punished by their colleagues or their voters. Politicians are especially likely to emulate the positions of the most influential members of their party. As such, the stance shared by people as important as Trump and Cruz— political hostility towards companies which they perceive as ideological enemies— is a significant indicator of the way the Republican Party will behave. With these partisan statements occurring at the same time as the increase in litigation, it is clear that political grudges are a major factor motivating legal action.

The Democrats are a left-leaning party, and have a long history of skepticism towards large corporations. As such, there is a degree to which their litigation against tech giants is driven by 441

Id. at 6.

Benjamin W. Cramer, From Liability to Accountability: The Ethics of Citing Section 230 to Avoid the Obligations of Running a Social Media Platform, Vol. 10. JOURNAL OF INFORMATION POLICY 123, 123-150 (2020).

443 Id. 444 Bernie Kohn, Trump’s Revenge Lawsuit Against Big Tech: Explained, BLOOMBERG LAW, Jul. 7, 2021.

445 Id. 442

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traditional anti-trust and consumer protection concerns rather than by the sense that these companies are direct political enemies of the party. However, their conduct in this area is still influenced by partisanship. As previously mentioned, there is a growing sense among many in the Democratic party that Big Tech companies are not doing enough to combat certain kinds of political communication on their platforms, particularly those classed as hate speech and misinformation. On its official website, the party recommends that major platforms “establish a political misinformation policy”446 and “enforce rules on hate speech consistently and comprehensively.”447 Most of the major Democratic presidential nominees in the runup to the 2020 election took strong stances against totally unregulated speech on social media platforms. 448 Senator Bernie Sanders promised to “ensure that these large, profitable corporations are held responsible when dangerous activity occurs on their watch, while protecting the fundamental right of free speech in this country and making sure right-wing groups don’t abuse regulation to advance their agenda.”449 Meanwhile, Senator Elizabeth Warren stated that “I condemn hate speech, and I believe we should be able to hold people accountable for their words.”450 Then-Mayor Pete Buttigieg made it clear that if elected, his administration would “identify online platforms and other companies that refuse to take steps to curb use by hate groups.”451 Andrew Yang highlighted the need to “combat the rise of misinformation and hate speech.”452 The current Democratic President, Joe Biden, has been vocal about the need to control misinformation, warning social media companies and conventional media outlets that “it has to stop.”453 These are of course highly sensitive topics, due in part to a highly polarized political environment that makes it difficult for people of opposing parties to even agree on what is false or hateful much of the time. Regardless of one’s personal opinion of content moderation on social media platforms, it is clear that growing partisan polarization has contributed to the perception that certain ideas are too dangerous to leave unchecked on social media (and the rise of these ideas themselves), as well as the resulting attempts to compel corporations to more actively regulate the conversation on their platforms. As such, it appears that the Democratic party’s litigation and legislation in this area may also be partially motivated by the growing partisan divide.

Interestingly, there is some disagreement between political factions over what effect repealing section 230 will even have. The actions recommended by major figures such as Senator Cruz might be based on seriously flawed assumptions. Some critics of Section 230, unaware that it allows moderation of user-generated content, mistakenly criticize the provision for allowing Internet services to avoid all types of responsibility. The provision has often been misinterpreted as requiring neutral content in return for immunity; and that Internet firms purportedly violate the law, or hide behind it, when hosting “biased” content, taking that content down, or not taking it 446

DNC RECOMMENDATIONS FOR COMBATING ONLINE DISINFORMATION, DEMOCRATS.ORG, https://democrats.org/who-we-are/what-we-do/disinfo/comparative-social-media-policy-analysis/.

447 Id. 448 Rani Molla and Emily Stewart, Should social media companies be legally responsible for misinformation and hate speech? 2020 Democrats weigh in, VOX (Dec. 5, 2019), https://www.vox.com/policy-andpolitics/2019/12/3/20965459/tech-2020-candidate-policies-section230-facebook-misinformation-hate-speech.

449 Id. 450 Id. 451 Id. 452 Id. 453 Jackson Richman, Biden Makes Plea to Media Outlets, Social Media to ‘Deal With the Misinformation,’ MEDIAITE (Jan. 13, 2022, 11:56 am), https://www.mediaite.com/tv/biden-makes-plea-to-media-outlets-socialmedia-to-deal-with-the-misinformation-it-has-to-stop/.

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down.454 That prominent officials hold such belligerent attitudes towards Big Tech— despite the inability of the parties involved to even agree on the effects of overturning major legal doctrines— is only further proof that partisan rivalry is driving much of this legal effort, rather than some wellreasoned plan to solve the serious problems surrounding the American tech industry.

The partisan fervor over the Big Tech issue will impact United States business law in major and unintended ways. Many of the lawsuits against major tech companies are ongoing, and with growing pressure from voters and politicians, it is sure that both AGs and non-governmental attorneys will add to the current list. As such it is very difficult to predict what the exact results will be at this point in time. What is certain at this early point in time is that these lawsuits represent an inflection point for anti-trust doctrine, privacy rights, and the way that speech is dealt with on social media. With so many legal battles looming over relatively uncharted territory, there is a high likelihood that at least a few of them will set new standards for what counts as anticompetitive behavior in the tech industry, place new limits on the collection of user data, or significantly alter the current interpretation of section 230, leading to a substantial increase or decrease in the power tech companies exercise over the speech of their users. It is extremely concerning that these critical legal issues are being examined in an environment where political gain is given as much weight as the public good.

The most striking example of partisan litigation is the war of attorneys that erupted in the wake of the 2020 election. After a closely fought contest in which Democratic candidate Joe Biden secured 51.3% of the vote, incumbent President Donald Trump refused to concede, alleging voter fraud. The result was a campaign of legal total warfare that lasted from the day following the election to the events of January 6th. The incumbent President launched a barrage of lawsuits against the states where he had alleged fraud, with the aim of getting enough votes thrown out to reverse the outcome. As a direct example of a President using the legal system as a tool to prevent the transfer of the Presidency to a rival of the opposite party, it goes without saying that this is the ultimate example of partisan lawfare.

Then-President Trump’s legal campaign was carried out on a completely unprecedented scale. Though there has been a trend of increasing election litigation rates for a while now, the contest over the 2020 election resulted in an even more shocking increase: Election litigation has been increasing steadily over the last few decades. Cases in the sample averaged 94 per year in the 1996–1999 period, compared to over 276 cases in the post-2000 period. More than that, records continue to be broken: two of the last three years of data, 2018 and 2020, each set records. The year 2020 marked the first time that rates exceeded 400 cases in a single year.455 The 2020 election saw an increase in election litigation rates of 26% relative to 2016, the previous presidential election year.456 Trump was not solely responsible for this increase; the year also saw an increase in election litigation due to disputes over changes in voting procedure intended to accommodate the circumstances created by the COVID-19 pandemic,457 and this surely explains 454

Benjamin W. Cramer, From Liability to Accountability: The Ethics of Citing Section 230 to Avoid the Obligations of Running a Social Media Platform, Vol. 10. JOURNAL OF INFORMATION POLICY 123, 123-150 (2020).

455 Richard L Hasen, Research Note: Record Election Litigation Rates in the 2020 Election: An Aberration or a Sign of Things to Come?, ELECTION LAW JOURNAL: RULES, POLITICS, AND POLICY (2022).

456 Id. 457 Id.

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some of the change. However, his legal campaign was still a major factor, as it surpassed even the scale of the litigation campaign surrounding the disputed 2000 election.458 The drastic increase in election litigation spending by each of the parties in 2020 relative to that in other years is a good indication of the amount of effort expended in the legal conflict between Trump and those who sought to halt his challenge to the election: Between 2003 and 2015, political parties' legal expenditures—measured by examining the Democratic and Republican national committees and their congressional and senate entities—hovered around $5 million per year. That figure dipped to just below $3 million in 2008 but surpassed $7.5 million in 2012, but it remained fairly steady between 2003 and 2015. In 2016, however, legal expenses shot up to over $15 million in expenditures, more than double the 2012 total. In 2017, the total dipped to just under $10 million. In 2018, it rose again to nearly $24 million, went up again in 2019 to $28 million, and surpassed an astonishing $66 million in 2020.459 The amount of spending in 2020 had more than doubled in 2020 relative to 2019, and was more than four times the amount of spending in the previous presidential election year. It is clear that 2020 saw a uniquely massive partisan weaponization of the legal process against the outcome of a presidential election. But what form did that campaign take?

Trump focused his litigation on the critical battleground states where the margin of defeat had been slim. His legal team was sent out to file multiple lawsuits in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin.460 These lawsuits were premised on the existence of voter fraud, and sought to stop suspicious votes from being counted.461 With slim margins in the battleground states, a high success rate in litigation could have translated into a completely overturned election result. However, of the more than 60 suits Trump had launched for this purpose- some of which went to the supreme court- none were able to convince judges that voter fraud had occurred, or that any votes should be removed from the count.462 In Commonwealth of Pennsylvania v. Ashley Regina Mowery, for example, the campaign’s lawyers argued that ballots which had been signed by an eligible voter but did not have a printed name, address, or date should not be counted because they did not perfectly meet the requirements enumerated in Pennsylvania state law. The court ultimately ruled that these printed details were not mandatory, citing previous rulings where it had been decided that technicalities should not be used to make the right to vote less secure.463 In Donald J. Trump for President, Inc. v. Benson, the President’s lawyers alleged that election observers had been prevented from observing the counting of absentee ballots or viewing video surveillance of ballot drop boxes, in violation of Michigan state law. A poll worker also submitted an affidavit alleging that another poll worker had told her that still other poll workers had been telling ballot counters to interfere with ‘date 458

Id. Id. 460 Joshua Ulan Galperin, Legitimacy, Legality, Legacy, and the Life of Democracy, 45 VERMONT L.R. 563, 565 (2020-2021).

461 Id. 462 James P. Pfiffner, The Violent Transition of the Presidency, 2020-2021, SCHAR SCHOOL OF POLICY AND GOVERNMENT 1, 6-7 (2021).

463 David F. Levi, Amelia Ashton Thorn, and John Macy, 2020 Election Litigation: The Courts Held, 105 JUDICATURE 8, 9 (2021).

459

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received’ sections of absentee ballots. Trump’s lawyers argued that this was illegal conduct and necessitated an injunction on the counting of absentee ballots. Ultimately, the court rejected the suit on the basis that the Secretary of State was not the proper defendant, that Michigan state law did not require poll election observers to be given access to video surveillance of drop boxes, and finally that the poll watcher’s story was overly reliant on hearsay and did not constitute evidence of illegal conduct.464 In Trump v. Wisconsin Election Commission, the President’s lawyers argued that municipal officials in Wisconsin had taken advantage of the decentralized election system of the state to alter election procedure to such an extent that it violated the Electors Clause of the US Constitution- which specifies that the state legislature should determine the manner in which the state’s electors are selected. As such, Wisconsin’s election results had to be decertified.465 The Court ruled against the President because he had brought the suit after the results had been certified,466 and also because the broad autonomy of municipal officials had been granted to them by decision of the state legislature, making it perfectly in accord with the Electors Clause.467 All of the other suits proceeded in a similar manner.

The incumbent President’s legal war ended with a dramatic Hail Mary in the form of Texas v. Pennsylvania. The suit was filed by the state of Texas, later joined by Trump and 17 other state AGs. In it, the Texas AG made a highly unusual argument, attempting to convince the Supreme Court that the voting procedures of Wisconsin, Georgia, Michigan, and Pennsylvania were flawed, and that counting such flawed results harmed the state of Texas.468 The suit soon garnered more support within the party: “Initially, 106 House members had signed an amicus brief supporting the lawsuit, and after threats by Rep. Mike Johnson (R-LA) that President Trump would retaliate against those who did not sign on, 20 more Republicans, including Minority Leader Kevin McCarthy, signed up to support the suit.”469 The coalition of backers that the suit attracted was surprisingly large, and indicated the sheer strength of partisan feeling animating the litigation that followed the 2020 election. Partisanship had reached such a level of intensity that even seventeen recently reelected members of congress had signed onto the suit, effectively questioning the validity of their own election victories.470 Ultimately, the Supreme Court rejected Texas v.

Pennsylvania on the basis that the state of Texas “had not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.”471 In other words, they lacked the standing to sue.

Though the President’s legal efforts to overturn the results of the election were ultimately unsuccessful, they have significantly affected election law going forward. Some of the precedents set will discourage similar behavior in the future. The failure of Texas v. Pennsylvania will reduce the likelihood of states suing other states for their internal election rules, as it has now been clearly established that they would lack the standing to sue. The case of Commonwealth of Pennsylvania v. Ashley Regina Mowery has reinforced existing doctrine that favors the right to vote over observance of technicalities. The legal battle of 2020 has had other impacts on election law: as a

464

Id. at 11.

Id. at 12.

466 Id. at 12.

467 Trump v. Wisconsin Election Commission, No. 20-cv-1785-BHL, 1, 22 (2020).

468 James P. Pfiffner, The Violent Transition of the Presidency, 2020-2021, SCHAR SCHOOL OF POLICY AND GOVERNMENT 1, 7 (2021).

469 Id. 470 Id. 471 Id. 465

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result of the doubts it raised about the election process, many states are enacting far stricter voter registration and election security laws.

Ultimately, the most significant impact of the events following the 2020 election is simply the attention that has been brought to the possibility of weaponizing the legal system against the electoral system. Trump’s suits largely failed to alter the outcome of the election due to sloppy execution. As the previous examples demonstrate, many of the suits were rejected in part due to the naming of improper defendants, late filing, or a lack of standing to sue. With more careful formulation, it may well have been possible for the incumbent President to disqualify enough votes to overturn the result. Under normal circumstances, winning an election in court is a longshot.

However, years or decades from now, a future president facing a similarly narrow defeat will surely have the actions of the 45th President in mind. If this hypothetical president is motivated to win at all costs- which may be the case if polarization does not decrease- Trump’s campaign of litigation will likely be an appealing precedent to draw from. One can only imagine what might happen if this hypothetical future President was a subtle, calculating sort, and decided to wage a legal campaign before the election had occurred rather than after, with the goal of tailoring election laws in his favor.

The rise of partisan lawfare presents a significant threat to the US legal system on several fronts. Legal battles between states and the federal government threaten to redefine federalism in an unpredictable way, as precedent is increasingly created as a byproduct of partisan struggles rather than being carefully argued into existence in reasoned legal disputes. Partisanship has become a driving force in the generation of new lawsuits against Big Tech, threatening to derail urgently needed regulatory reform and benefit one of the major parties at the expense of the average social media user. Issues over privacy rights, online speech, and market concentration will decided by litigators who have turned their attention away from the public good in favor of political expediency. The legal campaign following the 2020 election, while ultimately unable to change the result, damaged the credibility of the government for a large section of the population. It also imbedded the idea of winning an election in court into America’s political consciousness. There is always the risk that someone will pick up and fire the loaded gun left on the floor after that campaign, only this time with sharper aim. Unless something is done about the rapid escalation of lawfare, Americans will be forced to live under an increasingly arbitrary and dysfunctional legal system.

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Letter From the President

As the Founder and President of the Chapman University Undergraduate Law Review, it is a privilege and an honor to present our first completed volume. This journal was born during the most unprecedented of times, and it is with pride that I confidently say this journal has succeeded, nonetheless. Our greatest achievement thus far has been the establishment of a cohort of individuals devoted to the advancement of undergraduate pre-law education, and a tangible method to execute this goal. I have great joy in not only being a peer to these students, but a leader.

My role as Founder and President has been the most difficult and most rewarding year I have had yet. The dedication to this organization has carried me through the countless roadblocks and tribulations faced through the establishment of the Chapman University Undergraduate Law Review. The 2021-2022 team working on this publication has been invaluable in bringing each vision to life.

Involvement in this organization as an undergraduate student is a unique exposure to legal research, citation, and analysis. This has been brought to each of our writers, editors, and executive board members throughout the process of creating this journal. I am entirely pleased with what our work this year has produced, and have full confidence that the 2022-2023 team will be just as prosperous.

I thank you for reading and supporting our first volume, and encourage you to join us again next year.

Sincerely, Alexis Reekie Founder & President of the Chapman University Undergraduate Law Review

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