Mia Brett

The legacy of slavery isn't in the past — it's embodied in the American political system

The Post released a database this week of every elected member of Congress who ever owned slaves. The article attached to the database includes important stories of individuals remembered as abolitionists but who also owned slaves. These large numbers and individual anecdotes only tell one part of the larger story of the effect of slavery on our political system.

Why were over 1,700 slaveowners elected to Congress? Why were 12 of the first 18 presidents slaveholders? And why did so many people who didn’t own slaves, or freed their slaves, continue to support pro-slavery laws?

While there are of course obvious economic factors, owning slaves produced a lot of wealth, which maintained political power, there are also important structures embedded in our political system that privileged slavery and today continue to privilege reactionary rural white politics.

While the word “slave” does not appear in the Constitution until the 13th Amendment, there are many provisions of the document that showed complicity in the perpetuation of slavery as an institution.

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When the Constitution was written in 1787, 25 of the 55 framers personally owned slaves at the time. Others had formerly owned slaves or had existing financial ties to slavery. Even those without any personal ties to slavery knew that the economy of the newly formed United States was deeply dependent on the institution of slavery.

Excluding the word “slave” served to protect the institution by making slavery the purview of the states. The federal government only recognized slavery as a service status, not as a right to property for the slave owner. In some ways, this weakened a slaveowner's legal recourse in federal court and made slavery a local policy not recognized as a national institution or where federal law governed, but it also weakened the federal government’s power to regulate slavery at all. However, the federal government did have the power in Article 4 Clause 2 of the Constitution to put down domestic insurrections, which would include slave insurrections.

The clause of the Constitution that likely protected slavery the most was the Three-Fifths Compromise in Article 1, Section 2. Even though this clause was superseded by the 14th Amendment, we are still feeling its effects today.

The Three-Fifths Compromise was an agreement reached between Northern and Southern delegates to count enslaved people as “three-fifths” of a person for the purposes of apportionment and representation. This compromise cemented the political power of the South by allowing slaveowners to doubly benefit from owning slaves politically.

Since enslaved people would count towards the represented population of a state, Southern slave-owning states increased the number of representatives they would elect to the House. Additionally, this same population count was used for the Electoral College, directly increasing the slaveholding influence on presidential elections, and therefore also the nomination of Supreme Court Justices.

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The Electoral College was explicitly created to appease Southern fears about direct elections for president. They knew that their political power would be more limited as Northern states were more populous but would be advantaged by the system devised for congressional representation.

The Three-Fifths Clause has been repealed but we still use the Electoral College to elect the president, and it still privileges rural white voters.

The Three-Fifths Compromise is one of the biggest reasons why the Post database found 1,715 members of Congress who owned slaves at one point in their lives. If states with a lot of slaves had increased political power, they were going to have a disproportionate number of congresspeople.

The Three-Fifths Compromise also made the regional fights for political power in the country directly tied to slavery. While Northern states sent slave owners to Congress as well and were complicit in the entire system, they also began passing gradual abolition laws in the 1780s. The last one was passed in 1804 in New Jersey.

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Because gradual abolition laws phased slavery out slowly, many Northern states had slaves until the Civil War. However, as a result of these laws, the number of slaves in Northern states continued to lessen every year, and the Three-Fifths Compromise was not a source of political power for them.

Therefore, both the South and the North were invested in bringing new states into the union that would vote with their side on issues of economy and labor.

There was a battle over almost every state brought into the union, and unsuccessful compromises were attempted to keep the fight over slavery from boiling over and turning into the Civil War.

The Missouri Compromise, passed in 1820, was meant to put the issue to rest by saying that every state above the 36°30’ parallel, except Missouri, would enter the union as a free state.

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The compromise was effectively repealed 34 years later when the Kansas-Nebraska Act brought Kansas and Nebraska into the union by popular sovereignty. Each territory could vote on being a free or slave state. None of these compromises worked, and in fact, the Kansas-Nebraska Act resulted in a mini-war called “Bleeding Kansas.”

The South was so scared of losing any political power that they pushed for harsher laws and Supreme Court decisions to limit Northern states’ rights and protect slavery. Angry that too many enslaved people were escaping to freedom, Southern representatives pushed for an extreme Fugitive Slave Act as part of the Compromise of 1850.

The Constitution already included a Fugitive Slave Clause in Article 4, Section 2, which required that escaped enslaved people be returned to their owners. The new Fugitive Slave Law penalized anyone who didn’t assist in returning escaped slaves to their owners.

Officials who aided in returning escaped slaves could be rewarded financially, and people who aided escaped slaves with food or shelter could be punished. The act enforced Southern state interests on local authorities and circumvented local laws.

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Our current racial disparities and political problems aren’t just the result of the legacy of slavery. They’re the result of a political system that privileged the political power of Southern rural whites.

The politics of slave owners didn’t disappear after the Civil War, and the end of Reconstruction gave much of their political power back.

After 15 years of Black political power in the South, which helped pass the 13th, 14th, and 15th Amendments, the former Confederates and slaveowners took their power back, still bolstered by the effects of the Three-Fifths Compromise and the Electoral College.

As the Post database shows, slaveowners served in Congress until 1923 with almost 20 percent of Congress having owned slaves in 1879. In 1896, when the Supreme Court upheld racial segregation in Plessy v. Ferguson, not struck down until Brown v. Board of Education in 1954, all the justices had been born when slavery was still legal.

One had fought for the Confederacy and was connected to sugar plantations, and at least one other had owned slaves, though the slaveowner was John Marshall Harlan, who wrote the dissent.

The voter suppression laws put in place by former slave owners in the South, and allowed by federal politicians, were ended by the now-defunct Voting Rights Act in 1965. Until 2013, with Shelby v. Holder, former Jim Crow states were required to have any voter laws pass federal consideration. However, with the overturning of a key aspect of the Voting Rights Act, we are currently fighting voter suppression laws that wouldn’t have been able to pass since before 1965.

Apportionment is no longer affected by the Three-Fifths Compromise, but given the way the Electoral College is structured, it still privileges whiter and less populated states.

We aren’t just fighting the historical legacy of slavery but also the current political system that was always meant to uphold it.

There's a ridiculous 'free speech' debate reigniting over Marjorie Taylor Greene's Twitter ban

This week Marjorie Taylor Greene’s personal Twitter account was permanently suspended for disseminating covid misinformation.

This was actually her fifth strike after plenty of warnings. Greene still has access to the public through her congressional account, but that hasn’t stopped people from reigniting the free speech-censorship debate.

Not only do these conversations severely misunderstand how the First Amendment operates, they also underestimate the danger of guaranteeing a platform to dangerous misinformation.

First of all, and I can’t believe this needs to be explained, Twitter and other social media companies are not the government. They literally can’t engage in censorship even if they wanted to.

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Losing one’s Twitter account doesn’t stop someone from writing a blog, submitting an op-ed, standing on your roof screaming and holding a sign – or in Greene’s case calling a press conference.

No one is arresting or fining Marjorie Taylor Greene no matter how many covid conspiracy theories she spreads or how much racism or antisemitism she peddles.

Of course if Greene cursed or mimed a sex act during one of her press conferences, she might be fined for violating community standards. Even though, such speech is also protected by the First Amendment.

However, even many who understand that Twitter is a private entity well within its rights to limit Greene’s access still criticize the decision.

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The ACLU doesn’t claim it's unconstitutional to ban Greene’s personal account, but they still argue that social media companies like Twitter should be more cautious in limiting political speech.

Arguably, this view is actually anti-democratic in that it would privilege any speech from a politician over someone else’s. We don’t have a debate on the ethics of social media censorship every time a random Twitter user has their account suspended. Why should a politician have more protection to violate the terms of service of a company and spread racism, antisemitism, misinformation or even incitations to violence?

Furthermore even if we grant that people need access to a politician’s tweets, certainly the governmental account should suffice. Historically, the United States has limited political speech in ways that has supported jailing and deporting Jews and communists, but at issue here is giving speech uttered by a politician extra protection, not criminalizing political speech.

Disseminating misinformation and conspiracies is right out of the fascist playbook. Guaranteeing platforms to such speech does not serve democracy. If we privilege political speech, even when false or dangerous, we will only contribute to the growing fascist movement in this country.

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Many have expressed concern about the radicalization of white men through memes and Youtube as well as the effect of Fox News on older populations. Conspiracy theories in particular have led to antisemitic, xenophobic and Islamophobic violence in the last few years. While we shouldn’t prosecute disseminating such conspiracies as a criminal matter, we absolutely must consider the ethics of platforming such speech.

The January 6 insurrection was fueled by speech from politicians on social media, particularly Trump’s tweets that ultimately led to his being banned from Twitter and other social media platforms.

Do we really need more evidence that privileging and platforming dangerous speech just because it's from a politician can have dangerous consequences?

Very few constitutional rights are absolute. Free speech has limitations. For example, speech that is meant to incite violence or lawless action is not constitutionally protected.

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The test for determining if speech incites violence, and therefore not constitutionally protected, was established in 1969 in Brandeburg v. Ohio. The case considered a speech made at a KKK rally that included racial slurs and advocated “revengeance.” The Supreme Court ruled that the government can limit speech if the speech is “directed to inciting or producing imminent lawless action,” and is “likely to incite or produce such action.”

Additionally, a person can be sued if they engage in libel, slander or defamation. While courts have struck down most laws that impose criminal punishments for speech, civil lawsuits for defamation and limits on media through community standards remain as accepted.

In order to sue for defamation, a plaintiff must prove four elements: a statement made was false but purported to be fact; was published or said to a third person; amounted to negligence; and caused damages to a person or entity.

While Marjorie Taylor Greene didn’t slander a specific person, she was banned from Twitter for essentially lying and spreading dangerously incorrect information about covid and vaccines.

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It would be a stretch to say such speech incites violence (even though there have been violent anti vaccine protests), but it is not a stretch to say that such speech has life or death ramifications.

While I am not advocating outlawing speech simply because it can have dangerous consequences, I absolutely do think we need to take the threat of fascist-radicalizing speech seriously.

Additionally, by supporting, or even encouraging, private platforms to enforce stricter limits on such dangerous speech, we can make it harder for the alt-right to recruit new people. Why do they need access to Youtube and Reddit? They are welcome to publish their own newspapers and websites that people can seek out.

Most people objecting to limiting the platforms for extremist misinformation have no problem with enforcing community standards concerning obscenity. Pornography isn’t shown on the news, or on Twitter for that matter, but if you want to see it you can easily seek it out.

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If a Fox News program showed pornography or cursed, they would be fined, but we treat blatant lies and conspiracy theories as more protected than obscenity. I would argue limiting “obscenity” actually has consequences for gender performance and sex positivity, but that’s an argument for a different article.

Freedom of speech does not guarantee freedom from consequences or access to a large platform. It is simply a protection against government intrusion.

The debate concerning free speech on internet platforms far too often is focused on the political or partisan nature of the speech rather than considering its truthfulness.

I argue we need a slightly looser defamation standard for social media. If a person says something untrue but as a fact, publicly on social media, negligently and in a way that causes harm, we should support private companies limiting that person’s access to their platform.

The new right-wing attack on education is part of a long tradition of white conservative panic over schools

Conservative attacks on education through anti-critical race theory laws are the newest strategy in a long history of politicizing public education and delegitimizing integrated and inclusive academics.

While public education should be a neutral conversation supported by all (why would educating your children be political?), its history as a flashpoint for desegregation and racial inclusion fuels white panic.

Anti-CRT laws might seem outlandish, but they are the latest attempt by white conservatives to justify objections to acceptable public education. They are a continuation of attempts to use public education to indoctrinate students into white Protestant Americanism.

One reason public education is inherently politicized is that the federal public school system actually began after the Civil War. Public education was a local matter and much more common in New England. Boston Latin was the first public school in the original 13 colonies founded in 1635. Massachusetts began the first free taxpayer-funded school in 1639 called the Mather School in Dorchester.

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Education in this period was often in the hands of the parents to teach literacy and arithmetic while children had apprenticeships to learn other skills. However, the ability of the parents to teach literacy was partially related to their religion. Those who were Protestant were more likely to be able to read well so they could read the Bible.

Public education was less common in the South where the rich would employ tutors for their children rather than building a community school project. While New England’s public grammar school network expanded and became required in Massachusetts in 1647, they opened prestigious private academies, many of which still exist today.

In addition to a greater emphasis on primary education, most of the earliest universities were also located in the North. Therefore elite Southerners would travel to the North to enroll in universities.

Education was both a necessary component for a functioning democracy and also the purview of the elite. Not only did educating one’s children cost money, it meant there was luxury time for those children. Even with the focus on public education in New England, there wasn’t a public high school in the United States until 1820 or a compulsory education law until 1852 (both in Massachusetts).

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Until the late 19th century, even those supportive of public education for all usually only meant access to grammar school for basic literacy and arithmetic. Further education was a luxury and a sign of wealth.

Some states specified free public education would only be for the poor, thereby ensuring two tiers of education. After the revolution, the concept of Republican Motherhood ascended. That linked republican citizenship to education and put the responsibility in the mothers’ hands. This had the positive benefit of including women in some education since it was up to them to educate the next generation.

Until the Civil War, education was very limited for free Black people in the North and illegal for enslaved people. In the North, it was rare for schools to accept Black students, though there were exceptions.

For example, Caroline Forten attended an all-white private grammar school in 1854 and was hired eventually to teach white students in Salem, Massachusetts. She joined a group traveling to South Carolina islands to teach former enslaved people during the Civil War (the white slave owners had fled, leaving the Black people behind).

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There were examples of schools dedicated to teaching free Black people, like the New York African Free School. Their mission was often controversial (it was burned down in 1814) and difficult, because their students had to work and didn’t have basic necessities.

In the South, literacy was considered dangerous for enslaved people as it would allow communication between plantations and could lead to an organized revolt. It was also in the best interests of the planter class to keep enslaved people from knowing too much about radical politics.

The federal Department of Education was founded in 1867, but there was an immediate concern it could exercise too much control over local populations. It was made into the “Office of Education” to be housed within different departments a year later. By 1870, all states had public elementary schools paid by taxes. While these schools were meant to educate everyone, they were not initially compulsory.

Mississippi was the last state to pass a compulsory education law in 1917 but with little enforcement. During Reconstruction, the Freedman’s Bureau opened many schools, and Republican politicians set up a system of taxpayer-funded schools in the South.

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When Reconstruction ended, Democrats took back power. They cut funding for education. There was no requirement that schools be integrated, only that there be a school available for all children. The “separate but equal” rule was formalized in Plessy v. Ferguson in 1896.

Public education has a history of forcing a white Protestant curriculum with the idea of “civilizing” the poor, immigrants and Native Americans. Compulsory education gained popularity in the late 19th and early 20th centuries because it was seen as a tool of assimilation.

Compulsory education has a particularly brutal history for Native Americans. who were required to learn in English (not their native languages) and were taken off reservations to be taught at boarding schools. One of the most commonly used readers for public schools in the late 19th and early 20th centuries was the McGuffey Readers. Its antisemitic tropes were taught to Jewish children. Public schools were a place of forced assimilation into a white Protestant culture.

When Brown v. Board of Education forced the integration of public school education in 1954, the worst fears about federalism and compulsory education came true for white conservatives. Integrated education was dangerous, because it could lead to interracial sex – “miscegenation” – which was a direct threat to white supremacy.

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With integrated schools, it would be harder to ensure that Black education was always worse and less funded, though de facto segregation has continued many of these disparities. The North mostly relied on existing de facto segregation or parents pulled children out of public school and sent them to newly formed “segregation academies,” which were all-white private schools. While these can’t legally discriminate, after the 1976 Supreme Court case Runyon v. McCrary, many still exist today with very low Black enrollment.

The history of public education is highly politicized and racialized in who was excluded and how the content of public education enforced a specific white Protestant worldview. Recent attacks on “critical race theory” are the latest bogeyman to attempt to elevate a mythologized white-centric history over an inclusive and accurate education.

The Supreme Court's baffling precedent about Christmas trees reveals the reality of Christian hegemony

Every year around this time we get to argue about the religious significance of Christmas symbols only to be told they’re really secular celebrations of winter holidays. Some places choose to decorate celebrating Christmas, Hanukkah and Kwanza while others pretend Christmas trees aren’t really Christian. Also if you make an issue of the obviously Christian decorations you’re treated as a killjoy grinch.

As a Jewish woman whose mother loves putting a Christmas tree up, I would really like to say none of this matters and just enjoy the holidays. But unfortunately, I have to be that little grinch and point out that the ubiquity of Christmas decorations, and the claim they’re really just secular, is a pretty big cause for concern. Honestly, it should violate the Establishment Clause of the Constitution but, since we live in a Christian country, the Supreme Court has convinced themselves Christmas trees are totally secular and for everyone.

There are a few reasons this discussion is particularly at the forefront of conversation this year. For one thing, Hanukkah was early this year (it's already over) so by the time many people put out inclusive holiday decorations with a menorah, it actually made no sense to have one.

Far from including everyone, these demonstrations usually just serve to show Jews that we are treated as alternative Christians and that the dominant society doesn’t bother to actually learn about our traditions.

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Then there was the bizarre Fox reaction to an act of vandalism on their Christmas tree. Craig Tamanaha set fire to the Fox Christmas tree and has been charged with arson, criminal mischief and reckless endangerment. While there’s little evidence of motive, many at Fox are calling for hate crime charges and claiming that this attack of arson was an attack on Christianity (so I guess it's not a secular symbol?).

Oddly enough, another Fox host claimed the opposite when she said, “It’s a tree that unites us, that brings us together. It is about the Christmas spirit, it is about the holiday season, it is about Jesus, it is about Hanukkah.” Whatever you think Christmas trees symbolize, it's hard to understand their connection to Hanukkah. Sure, there are secular winter solstice celebrations that include decorating a tree, and historically we have a lot dating back to Saturnalia. And you can certainly enjoy putting up a Christmas tree if you’re an atheist, or my Jewish mother. But we all need to acknowledge that the ubiquity of Christmas symbols in America ultimately serves Christian hegemony.

Last week, a woman in California sued a local public school when they refused to allow her to put a menorah up as part of their annual tree lighting ceremony (they told her she could put a menorah ornament on the Christmas tree, which is what?). Their argument was that a menorah was a clear religious symbol while a decorated lit tree in the middle of winter with ornaments was not. A federal district court sided with the school by citing precedent from the Supreme Court.

You might be wondering why legal precedent supports putting up Christmas trees and only Christmas trees in public schools. And the answer is that the Supreme Court has ruled Christmas trees don’t violate the Establishment Clause … because they’re secular.

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The Establishment Clause refers to the first clause of the First Amendment which reads: “Congress shall make no law respecting an establishment of religion.” For the first half of American history, that only applied to the federal government. There were many state-level laws that respected only Christianity or even only Protestantism. In the 19th century, states moved to disestablish state religion and in the 1940s the Supreme Court interpreted the Establishment Clause to apply to the states through the Fourteenth Amendment.

In 1971, the Supreme Court developed the “Lemon Test” to determine if a practice violates the Establishment Clause in Lemon v. Kurtzman. The court struck down a law that allowed reimbursement for teachers at Catholic schools. For a statute to be constitutional under the Establishment Clause, the statute must have a secular legislative purpose, its principal or primary effect must be one that neither advances nor inhibits religion and the statute must not foster an excessive entanglement with religion.

There are two cases in the 1980s that support public Christmas displays as long as they’re not overly religious. These cases have ruled that Santa, a nativity scene and a decorated Christmas tree are secular … somehow (the display also had a Season’s Greetings banner).

In Lynch v. Donnelly in 1984, the Supreme Court held that a seasonal holiday display, including Santa’s house, a Christmas tree and a nativity scene, did not advocate a specific religious purpose but instead had “legitimate secular purposes.” It had legitimate secular purposes, the court said, because Christmas was a recognized holiday by the government and had long been important in “Western Culture.”

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In a more complicated, and kind of confusing decision, five years later, County of Allegheny v. ACLU, the Supreme Court ruled that an explicitly Christian nativity scene was unconstitutional, distinguished from the nativity scene in Lynch because there was nothing that wasn’t religious in the display, but that a separate display including a Christmas tree as well as a menorah was constitutional.

Therefore, while the court has acknowledged the display of a menorah as constitutional, it's unlikely they would force the school to include one when Christmas trees alone are also considered constitutional.

As I previously said, plenty of atheists put up Christmas trees and not all Christians around the world celebrate Christmas by putting up a tree. But in the United States a Christmas tree, a nativity scene, and honestly even Santa all have clear cultural, if not religious, connections to Christmas, which is a religious holiday. Cultural Christian hegemony is still an issue even without religious enforcement.

Additionally placing a menorah next to a Christmas tree isn’t enough to change that. There are many religions outside Christianity and Judaism that deserve to be respected. Plus, as I said, if the menorah is an afterthought without any connection to actual Jewish practice, it’s not actually being inclusive. Ultimately, recasting Christian cultural practices as secular only serve to support America as a Christian nation and alienate those who don’t belong to the tradition.

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Ending Roe will imperil a wide range of rights the Consitution is thought to protect

After oral arguments in Dobbs last week, it seems a lot of white cis male journalists finally realized the attacks against abortion were kind of a big deal. Sure, a lot of women had been sounding the alarm about it for decades, but who can hear over such high-pitched screeching?

Besides it's not like the attacks against abortion are really going to affect these men, right? I mean they don’t need to get abortions, and they mostly live in states that have their own laws protecting abortion or can even afford to send their girlfriends abroad if things get really bad. Except … there might be a tiny problem for them if Roe is overturned.

Because the thing is, Supreme Court cases that protect the right to use abortion and birth control are pretty important precedents for ensuring the right to privacy. If the attacks against “social issues” built on the right to privacy keep coming (and they will, don’t doubt it), I hope these men remember to clear their browser histories.

The legal argument around the right to abortion comes down to whether the right is protected in the constitution. In Roe v. Wade, the Supreme Court wrote that, "This right of privacy … founded in the 14th Amendment's concept of personal liberty and restrictions upon state action … is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

While many have argued abortion should have been protected through stronger constitutional grounds (I explain Justice Ginsburg’s Equal Protection argument in an earlier article), the constitutional protection remains in the right to privacy and personal liberty.

Planned Parenthood v. Casey further protects the right to abortion in a right to personal autonomy. Today, we rely on the right to privacy often in our daily lives, but the protection remains contested. Arguably a right to privacy is embedded in the Fourth Amendment when one looks at protections against unreasonable search and seizure as well, as the right to not have soldiers quartered in our homes. After all, why would police need warrants without an assumed right to privacy?

Despite this, the first case that explicitly recognized a right to privacy was Griswold v. Connecticut in 1965. While the right was recognized narrowly to protect the use of contraception between married couples, the court found there was an implied right to privacy in multiple amendments in the Bill of Rights. In Justice Harlan’s concurrence in Griswold, he argued for a right to privacy protection in the 14th Amendment, which has been the justification in later privacy cases. Eisenstadt v. Baird in 1971, which extended the right to birth control for unmarried people, and Roe v. Wade both cemented the right to privacy from the 14th Amendment.

In oral arguments in Dobbs v. Jackson, Mississippi Solicitor General Scott Stewart, arguing for a 15-week abortion ban, claimed abortion was not protected in the text of the Constitution but tried to distance any decision overturning Roe from also overturning a right to privacy.

Justice Sonia Sotomayor pointed out that any argument for overturning Roe and Casey, that abortion is not protected in the text of the Constitution, would clearly endanger other cases that rely on rights “discerned from the structure of the Constitution.” Even Marbury v. Madison, which protects the Supreme Court’s authority for judicial review, is based on a right “discerned from the structure of the Constitution” and not from the text.

Stewart obviously didn’t want to admit that tons of rights and cases would be in jeopardy from overruling Roe, so he attempted to draw a distinction between Roe and Casey and other cases that protect the use of birth control, private sexual activity or same-sex marriage.

Stewart argued the right to abortion is different from these other cases, because “Griswold, Lawrence, Obergefell, these are — these are cases that draw clear rules: you can't ban contraception, you can't ban intimate romantic relationships between consenting adults, can't ban marriage of people of the same sex,” he said. (I’m not sure how “you can’t ban abortion before viability” isn’t a similarly clear rule, but nevertheless, that’s his claim.)

Stewart’s second distinction is more problematic. He claims the right to abortion is different because it’s the only right dealing with the purposeful termination of a “human life.” Putting aside the question of when a fetus becomes a “human life” for a minute, one could definitely argue there are other constitutional rights that deal with taking a life.

The state has the right to purposely terminate a human life with the death penalty, which has been interpreted to not be included in the Eighth Amendment protection against cruel and unusual punishment.

Additionally, since DC v. Heller in 2008, the court has interpreted the Second Amendment to include an individual right to carry a handgun for the purpose of self-defense, a right justices reiterated in oral arguments for NY State Rifle & Pistol v. Bruen. Sure, it's possible that shooting someone in self-defense wouldn’t always result in purposely terminating a human life but it’s clear the court recognizes the protection to terminate another person’s life in self-defense. I, and some common law scholars, would argue terminating an unwanted pregnancy is self-defense, considering how dangerous pregnancy is.

Whatever Stewart claimed in Dobbs about the safety of birth control, private sexual behavior and gay marriage, we know all these rights are in danger. We know this because conservatives have told us.

Attacks on birth control have been increasing for the past two decades. Medical disinformation from conservative sources conflates birth control and plan B with abortion in attempts to outlaw birth control as well. The 2016 Republican platform, which was copied wholesale in 2020, includes promises to defend “traditional marriage." Amy Coney Barrett wouldn’t say in her confirmation if she supported birth control and gay marriage. The American Enterprise Institute, a right-wing think tank, expressed excitement at the possibility of rolling back all privacy protections after Kavanaugh’s appointment. And the architect of the Texas bounty hunter law, Jonathan Mitchell, has said that Lawrence v. Texas (protecting private sexual behavior) and Obergefell v. Hodges (protecting same sex marriage) are “as lawless as Roe.” He has indicated he’s coming for those rights next.

Ultimately, Roe v. Wade protects a lot more than abortion in terms of legal precedent. It, along with Griswold, are necessary stare decisis for our entire understanding of a fundamental right to privacy.

If we lose the right to an abortion, we likely will also lose important gay rights protections with attacks to Obergefell and Lawrence. But it’s also possible we will lose a lot more.

While Lawrence specifically concerned sodomy between two men, the decision protects all private sexual behavior. Losing the precedent for privacy protections could have far-reaching repercussions for internet usage, sexual privacy and even private healthcare information.

You would think the people screaming HIPAA all the time might at least care about that.

The real history of US anti-abortion politics began in 1662 — and is bound to the legacy of slavery

Another week, another terrifying abortion case at the Supreme Court. Today, the Supreme Court considered Dobbs v. Jackson Women’s Health Organization, which concerns a Mississippi 15-week abortion ban. Since 15-week abortion bans, and all pre-viability abortion bans, are unconstitutional under Roe v. Wade, the only reason to even hear this case is for the Court to strongly consider upholding the ban and overturning Roe. While anti-abortion activists have been working toward this moment since the late 1970s, it's no surprise they’re finding success in a moment of white backlash and growing white supremacy. The real history of abortion politics in this country should actually begin in 1662 with the first law codifying race and inheritable slavery.

The first 40 years of slavery in the North American British colonies treated slavery as it had been used previously in Europe. Slavery was mostly justified on the basis of religion or having conquered people and there were paths for slaves out of their enslavement. The slave system in Virginia completely changed with a 1662 law that made race and enslavement an inheritable condition through the mother. This law became the basis of the American racialized chattel system of slavery. It also clearly linked racial construction and the continuation of white supremacy to reproduction. Enslaved Black women would produce enslaved Black children while white women would produce free white children. The race of the fathers did not matter.

As a result of such a law, controlling the reproduction of women was vitally important both to produce more slave labor and to control white purity. White men had no downside to sexually abusing their slaves, as the resulting children would be considered Black. Alternatively, extreme social repercussions had to be placed on any white woman having sexual intercourse with a Black man, as the system could not tolerate Black kids being born free to white women.

Black women’s reproduction was a vital part of the American slave system, especially after the international slave trade was closed in 1808. Black women were forced to engage in sexual relationships with other slaves or were often sexually abused by their masters. Early gynecology was also created on the bodies of enslaved Black women because their value was so tied to their reproduction. During slavery, abortion became a tool of agency for enslaved Black women to not only control their own reproduction but also to resist the slave system.

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For most of common law history, abortion was either explicitly allowed until quickening (when the baby moves) or ignored. Abortion, and most gynecological concerns, were the purview of women. While the laws might have only condoned abortions until quickening, there were rarely prosections for later abortions unless the abortion was a result of a violent assault against the mother. Abortions were performed by both tribal communities and early British colonies in the 1600s and used mostly safe herbal abortifacients. Anti-abortion laws began in the 1820s but only criminalized post-quickening. It wasn’t until after the Civil War that there was a focused movement to outlaw abortion.

The timing of a movement to criminalize abortion after the Civil War is not a coincidence. While Black people were enslaved, the supposed superiority of white people was evident through the difference in the legal treatment of the two races. However after the Civil War, Black people were no longer enslaved, and so white supremacy needed new tools to continue enforcing the racial hierarchy.

These efforts were dependent on a high white birth rate and strong prohibitions against interracial sex (for white women and Black men at least). The post-Civil War period also coincided with an increase of “less desirable” immigrants and concerns that ethnic minorities would take over cities if pure white women did not have enough children.

This period also saw changing gender roles with more women working outside the home and engaging in suffrage movements, thus threatening traditional households and lowering the white birth rate. Moreover, male gynecologists who had just built their field by experimenting on enslaved Black women also needed to discredit midwives and less medicalized avenues of healthcare.

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Abortion was mostly ignored as it was the purview of women, but as male doctors took over gynecology, they encouraged legislative responses to abortion. These doctors also joined with eugenicist movements and warned that abortion could result in “race suicide.”

These efforts were successful. Abortion was criminalized in every state by 1910. This was the Jim Crow period in the South and the height of anti-immigrant fervor in the North. Not only was it important to ensure white women were having pure white babies to protect white supremacy, but white supremacist ideology was also dependent on there being a contrast to Blackness. More Black children not only meant more laborers but also were necessary to support the hierarchical view of the United States with white men on top. The threat of lynching was used to enforce strict racial boundaries between white women and Black men so white women’s reproduction could be controlled, and the pure white bloodline could be continued.

The success of the pro-abortion movement with Roe v. Wade in 1973 came only five years after Loving v. Virginia, which ended all bans on interracial marriage. While de facto segregation continued, de jure segregation had been outlawed and public places and schools were all theoretically integrated, even if that didn’t play out in practice. Nixon’s Southern Strategy capitalized on the conservative Christian values. Anti-abortion politics served as a more palatable political cause than anti-integration motives. The movements became inextricably linked.

Today, Republican politicians and far-right personalities are openly embracing “white replacement theory,” which is the newest name for the fear that there aren’t enough pure white babies being born. This eugenicist fear has the twist that a secret Jewish cabal is conspiring to encourage the non-white birth rate in order to harm white people.

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While the anti-abortion and white supremacist movements are clearly intertwined, many anti-abortionists now claim abortion is really a Black genocide and it is racist to support it. Their narrative relies on misinformation and a racist paternalistic view of Black people.

In reality, white supremacy can’t survive without an alternative Blackness to condemn. They use fear-mongering about Black welfare queens to get elected. Taking reproductive control away from white men and putting it in the hands of women and pregnant people of all races is the biggest threat to white supremacist patriarchy. Anti-abortion sentiment is always just white supremacy in disguise.

The warped history of self-defense law reveals a legacy of privilege

Kyle Rittenhouse was acquitted last week of shooting three people, killing two of them, because, he said, he feared for his life.

Some are claiming this verdict suggests that the legal system will be more supportive of those claiming self-defense at criminal trials. The United States Supreme Court has signaled its interest in striking down a New York gun regulation, because of its concern for poor commuters in New York City who need to defend themselves.

So once the Supreme Court allows me to carry a concealed weapon while walking around New York City, it sounds like I would be justified in shooting someone anytime my life is threatened. Perhaps the next time a strange man follows me home, I should shoot him. Or if a catcaller says something about raping me or if I'm alone in a subway car and a man sits down next to me -- perhaps I should shoot them all.

All of these situations pose a grave risk and all of them have happened to me many times over. It also seems that the "reasonable (wo)man" standard would justify the use of deadly force in the name of self-defense, as I'm sure most women in those situations also fear for their lives. But I'm guessing a jury wouldn't be so quick to let me off and society would probably enjoy classifying me as a "crazy" woman with a man-killing agenda. After all, Aileen Wuornos was executed.

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Historically, there have been groups explicitly excluded from claiming self-defense if they killed the person harming them. Common law drew a distinction between "justifiable homicides" that served the public good and personal killings in self-defense, which were "excusable homicides." In excusable homicides, people had a duty to retreat before using deadly force. In justifiable homicides, the killer could pursue the person, like if they committed a crime. There was no duty to retreat if one was at home, but this really was about protecting the property rights of land-owning white men. The duty to retreat even outside the home eroded in the 19th century with westward expansion and with contemporary "stand your ground" laws.

Self-defense was conceived as a right to protect one's person but also as a clear protection of property. It created a problem for people who were also legally included in property. Enslaved people obviously had no right to self-defense. Women were often legally included in the property of fathers and husbands. Enslaved people and (married) women had limited rights over their person historically.

Theoretically, intentionally killing a slave was illegal in most jurisdictions, but in practice it was rarely prosecuted. Since slave owners had broad power to enact physical punishment, there was no right to self-defense. Similarly, while interracial sex was illegal in many jurisdictions, and certainly publicly distasteful, that offered no protection for enslaved women raped by their masters. In 1855, an enslaved woman named Celia killed her owner after he had spent five years raping and producing at least one child. While the sexual abuse was well known and began when she was bought at 14, 12 jurors had no problem sentencing Celia to death for defending herself.

For (white) women, coverture was the legal theory that married women were legally covered within the protection of their husbands. This meant they did not have separate property and didn't need to vote, but also that they did not have the same physical rights.

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Dating back to common law, there was no legal cause of action for men raping their wives. It wasn't until 1993 that marital rape was illegal in all 50 states. While theoretically women still had the right to defend themselves against their husbands killing them, this legal understanding made that defense much harder to use. Rape was a legal cause of action for women if their rapist was not their husband, but it was rarely prosecuted in the 19th century. The more common charge was "seduction" in which a woman claimed a man convinced her to have sex with him under the false pretense that he would marry her. It was much harder to claim self-defense if courts didn't recognize your rights to bodily autonomy in the face of male violence.

Obviously today, self-defense is theoretically available to everyone in this country, and rape is a recognized cause of action for married and unmarried women. Unfortunately, the history of self-defense being the purview of white men still influences the legal culture in this country.

It's much harder to successfully claim self-defense for Black people when just owning a gun makes them seem guilty of something to many white people. Courts are also less likely to apply stand your ground laws to Black defendants, but there is an assumption that it is understandable for white defendants to be scared of Black men.

Self-defense laws are less likely to protect women defending themselves against abusers. Most require using deadly force only if she's in "imminent" danger. That means if women take an opportunity to kill their abusers when she's calm, she can't claim self-defense.

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Courts often don't let women use stand your ground laws to support self-defense claims because they kill men they have an ongoing relationship with or even with whom they share a legal residence.

Marissa Alexander was sentenced to 20 years after firing a warning shot in the vicinity of her abuser. It's possible that up to 90 percent of women in prison for killing a man had previously been abused by him. Women serve significantly longer sentences for killing intimate partners than men do despite the likelihood of killing the abuser.

Whatever people say about Kyle Rittenhouse, it's clear most of us can't shoot people anytime we feel threatened and get acquitted based on self-defense. Maddesyn George, a native woman who killed a white man who'd raped her, wasn't allowed to use a self-defense claim in federal court because prosecutors said she was the "initial aggressor."

Chrystul Kizer is fighting for her life in the same jurisdiction as Rittenhouse. In 2018, Kizer, then 17, killed a known sexual abuser after she had been trafficked. At first, a judge ruled she couldn't claim self-defense but his decision was overruled on appeal. The prosecution is still fighting that decision, claiming the killing was premeditated and the Wisconsin Supreme Court will decide if Kizer can claim self-defense as a trafficking victim.

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There are countless cases of women who survived and were punished by the criminal justice system for defending themselves.

The Rittenhouse verdict isn't a victory for self-defense. It's just another example of white men having different rights from the rest of us.

The alt-right faces a reckoning in court under a law designed for the KKK

Organizers of the 2017 Unite the Right Rally in Charlottesville are on trial for conspiracy to commit racially motivated violence in the federal lawsuit Sines v. Kessler brought by Integrity First For America.

The stated goals of the rally were to unite various factions of alt-right and neo-nazi groups to express racism and antisemitism but also to oppose the removal of a Robert E. Lee statue. The past few years have seen a strong backlash to President Obama's presidency and a white panic reaction to America's historical record becoming more accurate and inclusive. In a fitting response to their attempts to protect historical whitewashing, the men are charged under a 150-year-old federal law passed to disband the first Ku Klux Klan.

In 2017, there was a growing movement to remove historical monuments partially in response to the Charleston church massacre by white supremacist Dylann Roof in 2015. Roof had been radicalized by white supremacist websites and taken pictures with confederate symbols. He stated he wanted to start a race war before murdering nine people at the Holy City's historic Emanuel A.M.E. Church.

While many objected to the removal of confederate monuments because they were supposedly historically significant, those objections ignored what the actual historical significance was. Most statues weren't built after the Civil War as a monument to fallen soldiers, but instead were built years later during moments of racial tension.

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Many were built in the early 1900s during Jim Crow. Charlottesville's Lee statue was erected in 1924 while others were built in response to the civil rights movement in the 1950s and 1960s. These statues were clearly built to literally memorialize white supremacy in stone.

Monuments are rarely about history but instead about national myth-making. Consider how many more statues we have to soldiers than to activists. Monuments by definition don't present a nuanced historical analysis but instead mythic heroic image. When we protect confederate monuments we protect the mythos of the confederacy.

This commemoration of white supremacy and slave owners are what the Unite the Right Rally came out to protect in August 2017. They were protesting the decision of the Charlottesville City Council to remove the Robert E. Lee statue. Emboldened by Trump, neo-confederates, neo-nazis, white nationalists, klansmen, the alt-right, and even right-wing militias showed up brandishing swastikas, confederate flags, weapons and hate speech.

Earlier Richard Spencer organized a nighttime rally to protest the statue's removal. Alt-right groups brandished tiki torches and shouted "Jews will not replace us." There were violent clashes with counter-protestors and self-identified white supremacist James Alex Fields drove his car into a group of crowd, killing Heather Heyer.

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James Alex Fields was the only person who faced criminal charges, but in 2018 Integrity First For America brought a civil suit on behalf of nine plaintiffs against 25 neo-nazi organizers of the rally, including Richard Spencer, Jason Kessler, Andrew Anglin, Christopher Cantwell and multiple KKK groups. This lawsuit is attempting to hold these organizers responsible for conspiring to incite racially motivated violence leading to injuries. By using the Ku Klux Klan Act, or the Enforcement Act of 1871, the lawsuit links the Alt Right in Charlottesville to 150 years of white supremacist violence.

The Ku Klux Klan Act was passed by Congress after President Grant requested legislation to help address the reports of widespread racial threats in the South. This legislation was necessary to give him authority to intervene in state-level unrest. It also included provisions to bring federal civil suits against those depriving others of civil rights.

This particular provision has been codified into 42 U.S. Code § 1983 and is used as a civil-rights enforcement statute. The use of the act was limited after the Supreme Court required the involvement of "state action" in limiting someone's civil rights in the Civil Rights Cases in 1883. However, the Supreme Court revived the Enforcement Act in Monroe v. Pape in 1961. After the murders of civil rights activists in Mississippi, the FBI used the Ku Klux Klan Act to charge 18 people with conspiring to deprive the three men of their civil rights (local Mississippi prosecutors weren't interested in bringing criminal charges).

42 US 1983 has become one of the most important tools in civil rights litigation for all sorts of discrimination, and is currently being used by the NAACP to sue Donald Trump and Rudy Guiliani for conspiring with January 6 insurrectionists. But its original purpose was in breaking up the Klan. It seems fitting it's being used against alt-right groups.

Closing arguments began on Thursday after weeks of court testimony that the judge said proved conspiracy (in response to a defense motion to dismiss). Defendants testified as Richard Spencer attempted to read a racist manifesto and Christopher Cantwell spouted conspiracies.

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This trial should be seen as an important response to the alt-right movement, but has received a fraction of the coverage and attention of the Rittenhouse trial. While there seemed to be a momentary backlash against white supremacy in the wake of Charlottesville, the narrative that both sides are contributing to social unrest seems to continue.

As I mentioned in my column last week, the mostly peaceful BLM protests of last summer are being cast as another side of the violence of rallies like Charlottesville. Additionally, the conservative misinformation campaigns about critical race theory and the 1619 Project are dominating political coverage and the media seems to mostly accept fear mongering. In reality the current education fights are the same ones we were having about confederate monuments.

One side wants an accurate inclusive historical record while the other wants white supremacist mythmaking held up as history.

Kyle Rittenhouse hopes to capitalize on white panic

The summer of 2020 saw civil unrest and protests break out all over the country in response to the racist violence of police departments. It was sparked specifically by the murder of George Floyd. With little recourse against the systemic violence of police forces, many communities turned to marches and riots.

However, despite some property damage, only one killing during protests last summer, out of 25, has been confirmed to be committed by someone motivated by left-wing ideology.

Even though the data shows that 93 percent of Black Lives Matter marches are peaceful, the defense in the Kyle Rittenhouse trial this week is hoping to capitalize on the white panic that is scared of civil unrest to pretend that shooting three people, killing two who were unarmed, was self-defense.

On August 23, 2020, Jacob Blake, a Black man previously tasered, was shot multiple times in the back and paralyzed by a police officer responding to a 911 call in Kenosha, Wisconsin. Protests broke out almost immediately and a state of emergency was declared that night.

Police responded to the crowds with tear gas and rubber bullets. Peaceful protests continued during the following days with more property damage and police confrontations at night with a curfew imposed at 8 pm on August 24.

On August 25, 17-year-old Kyle Rittenhouse chose to travel across state lines from Illinois, break the state-imposed curfew and illegally carry an AR-15 style rifle to supposedly protect a car dealership and join a loosely organized local militia group formed in response to the unrest, though the Kenosha Guard militia group has denied any connection.

In the span of a few hours on the night of August 25, Rittenhouse shot three people after police expressed their appreciation for him and for other militia members "protecting" property. While the details of the shootings can be confusing in the midst of the chaos, it's indisputable that the two people Rittenhouse killed were unarmed and that the third person shot armed with a handgun thought Rittenhouse was an active shooter who needed to be disarmed.

Whatever Rittenhouse felt in the moment, if he felt scared or justified, or if just wanted to shoot people, he chose to break the law to go into a dangerous situation and was the only person that night to kill anyone.

He knew where police were, he knew where other militia members were and he knew how to leave the area but instead he killed two unarmed people.

No one should be allowed to participate in a dangerous situation and then use self-defense to justify their murderous response.

Rittenhouse's actions actually fit into a long history of state-supported vigilantism in the United States. Rittenhouse saw himself as justified to be in Kenosha with a rifle in part because police supported those actions. They had ample chances to impose the curfew on all the militia members or at least check to make sure the rifle Rittenhouse was toting was legal.

Instead they offered him water and encouraged militia participation in the evening. Police were harsher against people committing minor property damage or crowds refusing to go home than they were towards Rittenhouse carrying an illegal military-style weapon.

Vigilantes have always fit well into the American narrative of individualism and were particularly supported in frontier situations. Despite their obvious lawlessness, governmental institutions often supported them. Early vigilante movements during the revolutionary period to resist British control and protect frontier people from crime have become part of the founding myths of this country.

The terms "lynching" and "lynch law" are actually likely derived from Colonel Charles Lynch, who presided over an informal court in Virginia in the 1780s that punished loyalist supporters. In 1782, the Virginia General Assembly formally recognized the actions of his "court."

When addressing lynching in American history, some scholars have tried to claim Western frontier vigilantism was an example of "good lynching" that was necessary to keep order in places without formal courts.

The archetypal example of this supposedly good vigilante justice were the Montana Vigilantes who lynched 24 people in 1864, one of whom was their sheriff. While many of those lynched were likely criminals, most had committed only property crimes and could have been encouraged to leave the area instead of being killed.

Additionally there was little attempt by the lynchers to build a jail or employ a less extreme punishment. It's likely many of the lynchings were politically motivated. Despite this violence, many of the original members of the vigilance committee are honored as founders of the state.

The first governor and senator of Montana were both founders of the Montana Vigilantes as well as John Bozeman, the founder of Bozeman, Montana. The Montana Highway Patrol also has the numbers "3-7-77" on their arm patches which was a warning from the Vigilance Committee.

Contemporary white militias have also gotten slaps on the wrist for anti-governmental activities and violence while the racial justice protests of last summer faced violent police confrontation and dismissal as "looters." Five years ago, the anti-government extremist Ammon Bundy led a month-long forcible occupation of a federal wildlife refuge in Oregon but was acquitted and served no jail time. Four years before that, Ammon participated in a standoff with his father Clive Bundy against federal agents in Nevada. While there were federal charges against the Bundys they were ultimately dismissed with prejudice.

While Rittenhouse is being charged with murder, the entire trial seems like an exercise in continuing the history of supporting white vigilantism under a fig leaf of some kind of necessity.

Kyle Rittenhouse took the stand and cried about self defense after choosing to go into a dangerous situation with the justification that a car dealership needed his protection. The judge in the trial has already shown bias by ruling that the victims in the case couldn't be called victims but could be called rioters and looters, a decision that only bolsters claims of necessity.

One can't divorce Rittenhouse's claims of self-defense from his decisions before the moments he shot his rifle or from the good-faith attempts of people attempting to disarm who they saw as an active shooter.

We know that the presence of guns in a riot situation does not protect people but instead increases the likelihood of violence.

A white boy's desire to play vigilante and the state's bizarre focus on property over human lives cannot be more important than the people killed that day.

A bizarre twist of fate left abortion rights and the 2nd Amendment entangled at the Supreme Court

In a bizarre twist of fate, it seems abortion and gun rights are intertwined at the Supreme Court. This past week, SCOTUS has heard oral arguments in two cases concerning SB8 (the Texas bounty hunter law) and a gun rights case from New York state. They also declined to hear two cases with significance for mandating abortion for insurance coverage and transgender healthcare. Shockingly, it's not all bad news out of the court but some of the good news on abortion could be owed to a brief from the Firearms Policy Coalition (yes, seriously).

The two abortion cases heard this past week concern the Texas bounty hunter abortion law (SB8) that places enforcement of a six-week abortion ban in the hands of private individuals suing people who aid in abortions. The court previously allowed this law to take effect (even though it's a blatantly unconstitutional attempt to avoid judicial review) in a shadow docket ruling on September 1.

The two cases the court heard this week aren't directly considering the constitutionality of the law, but instead considering if the law can actually avoid judicial review and if people can sue in federal court. Whole Women's Health v. Jackson was the original case before the court on September 1 when it declined injunctive relief. It is now back in front of the court, this time asking justices to consider the narrow question of who is allowed to sue. Similarly, the second SB8 case, United States v. Texas, also asked the court to consider who is allowed to sue but this time in a case brought by the Justice Department.

SB8 was designed to avoid judicial review in federal court by placing enforcement of the law in the hands of private individuals, not state actors. It also flouts long-accepted rules of civil procedure by allowing said private individuals to bring suits against abortion providers without experiencing any direct harm, and therefore without standing to bring the suit. The law really makes no sense from a legal standpoint and clearly is just a blatant attempt to pass an unconstitutional law while attempting to avoid federal courts calling it unconstitutional (which would usually require the involvement of state actors).

Despite their allowing SB8 to go into effect initially, it seems during oral arguments a few conservative justices finally woke up to the fact that this law is ridiculous and could have far-reaching implications beyond abortion law. The four justices (Kagan, Sotomayor, Breyer and Roberts) who wrote dissents in the decision to allow SB8 to go into effect seemed to remain consistent with that position. Alternatively, Alito, Gorsuch and Thomas seem happy to allow a ridiculous evasive scheme if it means outlawing abortion (although even Thomas pointed out that SB8 is an extreme law by allowing people who haven't been injured to bring suit). The original dissenters only need to pick up one vote to allow abortion providers to sue, and somehow oral arguments showed both Kavanaugh and Barrett being critical of SB8.

The justices were concerned that Texas was trying to exploit a loophole in judicial review, and that the financial threat would prevent abortion providers from performing abortions and then challenging the suits brought against them in federal court, but I think the threat to gun rights was probably most persuasive, particularly to Kavanaugh.

Kavanaugh cited a "friend of the court brief" from the Firearms Policy Coalition and expressed concern that other states could use this scheme to avoid judicial review to limit other constitutional rights. Normally, I don't think gun rights advocacy groups care too much about abortion, but they had harsh words for SB8, calling it "Texas's cavalier and contemptuous mechanism for avoiding federal review of a scheme intentionally designed to chill the exercise of constitutional rights as determined by this court's precedents."

While I'm happy the justices are recognizing the far-reaching implications for SB8 concerning other issues, the fact that gun rights are likely the most persuasive is already hurting us in another case.

Two days after SB8 oral arguments, the Supreme Court heard oral arguments in N.Y. State Rifle & Pistol v. Bruen. This case is challenging a 108-year-old law requiring that people show "proper cause" to get a license to carry a concealed handgun. Courts in New York have interpreted this to require people have a need beyond simply wanting to defend themselves and their property.

The challengers in this case, a gun rights advocacy group, claimed that the history of the United States shows that the text of the Second Amendment protects an individual right to carry a gun for self-defense.

Paul Clement, arguing for the challengers, claimed that the New York law serves to "convert a fundamental constitutional right to a privilege." Kind of a bizarre argument since the founders favored broad gun control measures and an individual right to carry a handgun wasn't recognized federally until 2008 in DC v. Heller. Even in Heller, Scalia emphasized that long-standing gun regulations like concealed carry bans should still be considered constitutional (something acknowledged by Kagan and Sotomayor). Similarly, Barbara Underwood, the solicitor general of New York, argued that public safety restrictions on carrying guns in public were common and well-accepted.

In a particularly bizarre line of questioning a number of the conservative justices objected to the fact that New York more readily grants gun licenses in less populated areas and is more restrictive in high-density urban areas. As a longtime New York City resident this seems like a no-brainer to me but Kavanaugh, Thomas, Alito and Roberts weren't so convinced (have any of them taken the subway?).

Roberts wonders how many muggings happen in the forest but doesn't consider that you don't have the self-defense options with a bear that you do on a crowded street with people everywhere. Alito actually seems to think it's reasonable for someone to use a gun inside a crowded subway car for self defense, which is terrifying as someone who actually takes the subway regularly. He knows bullets can ricochet in small metal spaces, right? Though Alito also thinks the subways are just filled to the brim with illegal guns so who knows. Luckily Breyer was actually useful and cited an amicus brief showing a correlation between violent crime and more permissive concealed-carry laws.

On the surface these cases seem to be connected, both concern state laws placing limits on constitutional rights, but in actuality they couldn't be more different. A concealed carry restriction is well within long-standing interpretations of the Second Amendment and supports a legitimate state interest while a six-week abortion ban explicitly violates all existing abortion precedent. Additionally SB8 is a bizarre legal scheme to undermine judicial review and upend civil procedure while New York's gun law is consistent with accepted legal principles.

Unfortunately, the justifications for allowing challenges to SB8 for Kavanaugh, the possible implications for gun rights, will likely also drive a number of the justices to strike down New York's gun law.

More concerning is whatever possible redress we get with the Texas bounty-hunter law is likely temporary. We still face a substantive challenge to abortion protections with the Supreme Court's agreeing to hear Dobbs v. Jackson Women's Health (a challenge to Mississippi's 15-week abortion ban) on December 1. Even so, it's still important for SB8 to be struck down because we should all be terrified of laws encouraging private enforcement and rewarding dragging your neighbors into court.

The dark history of American antisemitism

This past week has seen: antisemitic incidents in Austin, Texas; Sunrise DC, a climate activism group, refusing to be on a coalition with Jewish organizations with any connection to Israel; and the third anniversary of the Tree of Life massacre. This comes after a year of bizarrely comparing vaccine mandates to the Holocaust and four years after the Charlottesville rally where people chanted "Jews will not replace us."

Yet many still see these as aberrations in an otherwise accepting history of Jews in the US. In reality, the history of Jews in the US is one of marginalization, systemic violence and discrimination.

Jewish acceptance in American society was not static but instead fluctuated with changes in conceptions of race, legal interpretations of religious freedom, and the size of the Jewish population. (People don't tend to hate groups that are so small they're unaware of them.)

Anti-Jewish bigotry was brought with European colonization as it was very present in Christian Europe in the 1500s and 1600s. Jews as "Christ killers" dominated societal narratives. Jews had also faced massacres and blame for the Black death just a few centuries earlier.

While these views traveled with colonists to the "new world," there was little explicit bigotry against Jews in the early history of the United States because there simply wasn't a large enough population. However, that doesn't mean Jews living in the North American colonies, and then the United States, didn't face legal discrimination.

As I mentioned in an earlier column, most of the North American colonies had established Christian religions and required engagement in the church for civic participation. While some states disestablished their state religions with their new constitutions, Connecticut, New Hampshire, Massachusetts, Maryland, Rhode Island and South Carolina didn't (New York was the only state that, in 1790, had no restrictions on civic participation based on religion).

It wasn't until 1877 that (white-skinned) Jews could universally hold public office and vote in all states, though Jews still faced obstacles to voting if it was held on a Saturday or if they didn't speak English (there were no Yiddish translations of ballots at this time). Many courts also judged the veracity of witnesses based on their belief in Jesus Christ well into the 19th century and didn't allow for Jews to swear oaths according to their own religious customs.

As religious restrictions on civic participation eased, the Jewish population in the United States grew and they faced more explicit societal bigotry. The 1850s saw increased clashes between Catholics and Jews in cities. Some Catholic priests refused to take confession if people worked for Jews. A number of newspapers ran articles warning about Jews and heavily influenced by anti-Jewish stereotypes.

In California, a law was proposed to levy a tax on Jews to keep them out of the state (though it did not pass). The Civil War saw more anti-Jewish bigotry with newspapers accusing Jews of financing the Confederacy. Some newspapers specifically accused, with little evidence, the Rothschilds and "foreign Jew Bankers.")

The Rothschilds responded, telling the State Department not only were they not financing the Confederacy but they opposed slavery. Possibly influenced by this, in 1862 General Grant expelled Jews from his military district. Lincoln rescinded the order a few months later but privately General in Chief of the Army, Henry Halleck apparently told Grant that Lincoln agreed with expelling "Jew Peddlers."

Antisemitism only intensified in the years after the Civil War with increased racial tension and nativism. A constitutional amendment to recognize the authority of God and scriptural law, which had been proposed during the Civil War, was gaining support in the 1870s with a campaign spearheaded by Supreme Court Justice William Strong.

The revivalist and anti-Jewish campaign of the Reverend Dwight Moody also gained popularity in the 1870s. Moody traveled to cities regaling listeners with detailed stories about how the Jews killed Christ, including an incident in which Moody claimed a group of Jews gathered in Paris in 1873 to boast of killing the "Christian's God." Growing antisemitism encouraged a renewed interest in "Sunday Law" prosecutions which arrested Jews for doing business on Sundays.

In the South, growing antisemitism took a more violent extrajudicial approach. In 1868, a Jewish store owner, Samuel Bierfield, was lynched along with his African-American clerk, Lawrence Bowman, in Tennessee. It was assumed both were killed by the KKK due to Bierfield being too friendly with Black people. No one was ever held accountable for their deaths. Samuel Fleishman was killed a year later in Florida supposedly because he defended Black people.

His likely murderer was a partisan Democrat who likely fled to Texas after also killing a Black man. Similarly, a man named WM Lucy was supposedly murdered in Florida in 1871 for being a Jewish Republican who got along with Black people. These were not isolated incidents.

There are many reports of murdered Jews in this period and even more intimidation to drive Jews store owners and peddlers out of Southern communities. The vigilante farmer Whitecapping movement targeted racial minorities and specifically Jews. They scapegoated Northern Jewish peddlers for their economic problems. It's important to emphasize that while these movements didn't necessarily consider Eastern European Jews "white," violence targeted white-skinned Jews. The stereotypes couldn't even conceive of non-white-skinned Jews.

Possibly the most famous example of anti-Jewish violence in the US was the lynching of Leo Frank in 1915. He was a factory superintendent convicted of killing 13-year-old Mary Fagan in Atlanta on very flimsy evidence. When the governor commuted his sentence from the death penalty to life in prison, a mob broke into the jail and lynched Frank in Marietta, Georgia. No one was ever punished for his death.

While violence against Jews was much less common than against Black Americans, there were similar justifications for bigotry against Jewish men — that white women must be protected from sexual perverts. Ten years after Frank was lynched, a North Carolina mob castrated Joseph Needleman after a white Christian woman accused him of rape. (His attackers were found guilty, a rare outcome). In the North, Jews were criminalized as part of the white slavery panic. It was feared "racialized men" were pressing virtuous Christian girls into prostitution.

The criminalization of Jewish immigrants came at a dangerous time when immigration laws were changing and the Jewish community was terrified of denaturalization. Eastern European Jews had technically been classified as "white" for the purposes of naturalization law but that status always felt precarious. While their naturalization status didn't change, Jews did face increased obstacles to immigration with the quota system of the 1924 Immigration Act, which ultimately blocked many Jewish refugees fleeing Nazi Germany.

Additionally, the Naturalization Act of 1906 federalized the naturalization process, and also formally defined denaturalization powers for federal attorneys. Formalizing denaturalization processes created classes of people with a form of "conditional citizenship." This status was imposed on politically active Jewish immigrants who faced deportation and denaturalization at higher rates than other groups.

Emma Goldman was the first person to be denaturalized under this law in 1919. The same year, six Jewish anarchists brought a case to the Supreme Court challenging their conviction under the Espionage Act of 1917 for distributing pamphlets discouraging registering for the draft. The convictions were upheld and four were deported.

This long article is just a snapshot of the history of antisemitism in the United States but it hopefully will start to make people see antisemitic incidents as a part of a larger pattern rather than a momentary disruption to the idea of the "melting pot" acceptance.

Also while this article is mostly concerned with antisemitism against white-skinned Jews, there are Jews of all races that face intersecting levels of oppression and bigotry. Ultimately, the lie that Jews have been historically accepted in American society only serves to cause harm and drive a wedge between marginalized communities.

White America might pretend that if white-skinned Jews act a certain way, we'll be assimilated into whiteness. But our liberation only comes through solidarity with other groups targeted by white supremacy.

The seedy history behind gerrymandering and the fight to preserve white power

Maps are being redrawn all over the country in response to last year's census. Unfortunately, the process currently leaves a lot of room for partisan gerrymandering. It is the first time since the passage of the Voting Rights Act that district maps will be drawn without the preclearance requirement of the Voting Rights Act for many states.

A 2019 Supreme Court case also makes it impossible to bring gerrymander cases to federal courts on the basis of partisanship. Luckily some states have passed redistricting reforms since the last census. Others have divided legislatures where partisan abuse is less likely. But there are states that will attempt to draw maps in blatantly partisan ways, particularly to protect Republican political power.

The practice of manipulating voting districts for political power — ie, gerrymandering — wasn't invented in the US but it's hard to say we didn't perfect it. In 18th-century Britain, districts called "rotten boroughs" were drawn with few voters to ensure certain representatives were elected to Parliament. Gerrymandered districts have existed since the inception of US congressional districts, but initially the districts were still drawn in relatively normal ways.

The term "gerrymander" was coined after an 1812 Massachusetts state senate district map was drawn and signed into law by then Governor Elbridge Gerry. The map drew a long thin district that sliced up Essex County, which usually voted for the Federalist Party, in order to help the Democratic-Republicans. As a result, a county that had elected five Federalist representatives elected three Democratic-Republicans and only two Federalists. Federalists won over 1,500 more votes statewide but elected only 11 representatives while Democratic-Republicans elected 29. Ultimately, the extreme district map caused a backlash and Federalists soon regained power and redrew the district map.

The bill was seen as a partisan vendetta by many Federalists and when a satirical cartoon was drawn Elbridge Gerry's name was used to describe the salamander-like monster. Thus the term "gerrymander" was born. While obviously not the first time districts were drawn in a way to consolidate political power, the Massachusetts map was the first example of a district drawn in a clearly ridiculous way.

In 1842, Congress passed the Apportionment Act. It required districts to be geographically contiguous but there's little evidence it was enforced. Once Black men gained the right to vote, the use of gerrymandering grew with a vengeance. States redrew their maps more often after the Civil War to advantage the Republican and the Democratic parties. Democrat-controlled Ohio redrew its congressional districts six times between 1878 and 1890 to ensure Democrats were in control of the state. In 1888, Pennsylvania redrew its map so Republicans could retain their majority in the state House.

After the Civil War, gerrymandering not only caused partisan results but was used to disenfranchise Black voters, specifically as a response to the Black political power gained during reconstruction. In 1876, a Texas newspaper commented that the racist gerrymanders disenfranchised Black voters by "indirection." Mississippi created a "shoestring district" and South Carolina drew a "boa constrictor" district in order to disenfranchise Black voters. This "boa constrictor" district linked every Black precinct that could be connected by even the smallest land continuity. By isolating Black voters , the violent intimidation or outright fraud needed to disenfranchise them became much easier. Along with poll taxes, literacy tests and all-white primaries, racist gerrymanders successfully disenfranchised Black voters in the South until the civil rights movement.

In the 1960s, the Supreme Court issued a number of opinions dubbed the "redistricting revolution" to address gerrymandered districts. In 1960, the court found that district lines drawn with the intention of disenfranchising Black voters violated the 15th Amendment in Gomillion v. Lightfoot. Justice Frankfurter's opinion held that an Alabama act that created a Tuskegee district that excluded nearly all Black voters effectively denied people their vote to vote on the basis of race. Overturning the 1946 decision Colegrove v. Green, which held that malapportioned congressional districts were not the purview of the federal judiciary, Baker v. Carr in 1962 held that redistricting issues could be brought to federal courts under the 14th amendment. Two years later the Supreme Court decided two cases, Wesberry v. Sanders and Reynolds v. Sims, requiring that electoral districts be established based on equal population and the principle of "one person, one vote."

While important precedent that forced maps to be redrawn, the requirement of uniform population did not stop districts from being drawn in bizarre shapes to protect partisan power. In 1993, in Shaw v. Reno, the Supreme Court held that a bizarrely shaped district is strongly indicative of "racial intent" and therefore will be struck down for violating the Equal Protection Clause if no other reason for the shape can be given. While certainly a step in the right direction, Shaw didn't exactly end the practice of drawing ridiculously shaped districts. Additionally, Shelby v. Holder will likely make it easier to get racist gerrymanders into effect because preclearance is no longer required.

In 2019, the Supreme Court dealt a huge blow to efforts at fixing partisan gerrymandering. In Rucho v. Common Cause the court held that partisan gerrymandering is not an issue for federal courts to consider and is only the purview of state courts or legislative action. Under the 2017 decision Cooper v. Harris, cases can bring issues of racist gerrymandering to the federal court system, but they have to prove race was the predominant factor in drawing the district and that the state didn't have a compelling state interest, like protecting minority voting rights at which time race can be a consideration.

Two weeks ago, Texas released a redistricting map that prompted a lawsuit alleging intentional discrimination against Hispanic voters. Since the lawsuit concerns racist gerrymandering and not just partisanship, it can be brought in federal court. But it's not yet clear how it will be received. Under the proposed Freedom to Vote Act, this type of gerrymandering would not be allowed and neutral redistricting standards would be imposed. The act also would provide more power to courts to adjudicate issues with gerrymandering more quickly.

Unfortunately in the most recent Senate vote, the bill was blocked in a 51-49 vote because Democrats don't have enough votes to override the filibuster. Republicans are blocking the bill but the current redistricting reform is actually based on a 30-year-old Republican proposal. Senate Majority Leader Chuck Schumer is still promising to fight for the bill but we likely will continue to need West Virginia Senator Manchin and Arizona Senator Kyrsten Sinema to agree to filibuster reform if we have any hope of passing the legislation.

Disenfranchising felons has disturbing roots in the ancient practice of 'civil death'

This week Democrats are making a renewed push for passing voting rights legislation. The bill includes reforms to limit partisan gerrymandering and address campaign finance reform. While it is a needed protection for voting rights after the Voting Rights Act was gutted in 2013, there are a number of important issues it doesn't touch that we should consider at the state level before the 2022 election.

While criminal justice reform remains an important political issue, felon enfranchisement and incarcerated voting don't get as much attention. Some states, however, are beginning to address the voting rights of formerly incarcerated people at least. After years of individually restoring voting rights, Virginia Governor Ralph Northam restored voting rights for all formerly incarcerated individuals not currently in jail in March 2021. In 2018, Florida, which had one of the worst felon disenfranchisement laws in the country, passed a ballot measure with 65 percent support to automatically restore the voting rights of 1.4 million formerly incarcerated people. Unfortunately, Republican legislators are still trying to use court fines to prevent them from voting but many were able to vote for the first time in years in 2020. Unfortunately, there has been almost no effort to support voting rights for people who are currently incarcerated.

While felony disenfranchisement has long been accepted, the legal justifications are far from conclusive. Disenfranchising those with a felony record has its roots in "civil death" as a criminal punishment dating back to ancient Athens, Rome, and medieval Europe. However, since only elites had civil rights, this punishment was only applied to elites historically. This punishment could result in a complete loss of citizenship rights, which could include the loss of the right to serve in the Roman legion, living outside the protection of law in medieval Europe, the loss of all property and of course suffrage.

The concept of civil death carried over to Britain and then the colonies with British common law. Punishment in this period was often physical with the stocks, public whipping and even branding particularly for lower classes. Civil death remained a punishment only for those who were elite enough to participate in civil society.

The 19th-century rise of the penitentiary changed the societal response to crime. Foucault suggested this was a change from enacting punishment on the body to enacting it on the mind. The purpose of imprisonment was to restrain freedom of movement in order to encourage silent religious contemplation and improve a person to become a better, more productive citizen of a democracy.

The Constitution left specific suffrage rules up to the states and says nothing about criminal or incarcerated voting rights. Kentucky was the first state in 1792 to establish criminal disenfranchisement by excluding those convicted of "bribery, perjury, forgery, or other high crimes and misdemeanors" from voting. Vermont followed in 1793 and Ohio in 1802. Between 1812 and 1821, Louisiana, Indiana, Mississippi, Connecticut, Alabama, Missouri and New York all passed criminal disenfranchisement laws mostly applying to high crimes or "infamous" crimes. Other states continued to pass laws that disallowed criminals from voting until the Civil War.

The contemporary form of felon disenfranchisement that applies to many more crimes than "infamous ones" was an attempt to disenfranchise Black voters during Jim Crow. Jim Crow laws criminalized Black people, which increased the number who became felons, and the new felony disenfranchisement laws expanded the crimes that would cause one to lose their right to vote. Alabama passed the first such expanded criminal disenfranchisement law in 1901. The Voting Rights Act of 1965 sought to correct the racially discriminatory voting laws that kept Black people from voting, but did little to address felony disenfranchisement.

Relevant Constitutional case law on felony disenfranchisement began in 1966 with Otsuka v. Hite. The California Supreme Court ruled that the phrase "infamous crimes" should only disenfranchise those "deemed to constitute a threat to the integrity of the elective process." If followed, this precedent would actually serve to restore voting rights to many formerly incarcerated people.

Usually the state has to prove a "compelling interest" in order to limit voting rights, but the court has generally found criminal disenfranchisement to be an exception. The Ninth Circuit addressed this specifically in Dillenburg v. Kramer in 1972 by acknowledging that Constitutional justifications on this subject have been vague and courts have been hard pressed to specifically define the state's interest in disenfranchising those who have been convicted of a crime. While the court agreed that historically, felon disenfranchisement had been ruled constitutional, they also left the door open to the law evolving by writing that "the constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber."

Unfortunately, courts went in a different direction and two years later the Supreme Court ruled that criminals were exempt from Equal Protection Clause protections in Richardson v. Ramirez. They overturned the lower California court which ruled that felon disenfranchisement violated the Equal Protection Clause of the 14th Amendment. Richardson has become the controlling precedent to justify felon disenfranchisement and it was decided in the post Civil Rights backlash against criminal justice reform that fed mass incarceration.

Whatever the legal justification, disenfranchising currently or formerly incarcerated people serves no governmental interest. The initial reasoning for the penitentiary as a form of punishment was explicitly to turn criminals into good citizens, which suggests the need for incarcerated voting rights to achieve this. Additionally, isolation and a strict focus on punishment tends to increase recidivism rates while education and a connection to the outside world decreases them.

Allowing incarcerated people to vote would also address a phenomenon called "prison gerrymandering," in which inmates are counted in the census for population purposes where the prison is located but not allowed to vote. Many states house their prisons in rural, predominantly white, areas while the prisons are disproportionately filled with urban people of color. Therefore, this practice gives outsized voting power to rural white areas by counting people who can't vote in those areas.

Two states, Maine and Vermont, have unrestricted voting rights for felons and even allow incarcerated people to vote from jail, though there is little effort to encourage these people to vote. Twenty-one states reinstate voting rights immediately upon release and 16 more reinstate voting rights after people have completed their prison term as well as parole or probation. In 11 states people risk losing their votes indefinitely or require a governor's pardon for their rights to be restored. Since the constitutional justifications are similar for incarcerated disenfranchisement, it's logical to consider real universal suffrage for all citizens, incarcerated or not, with the consideration of felon enfranchisement. Unlike early forms of "civil death," criminals don't lose their citizenship upon conviction, and again, penitentiary justifications include rehabilitation through good citizenship.

Previous legal arguments to justified felon enfranchisement have often relied on the Voting Rights Act to argue that felony disenfranchisement is racially motivated (or at least has a racial impact). Many legal scholars also suggest that criminals shouldn't be exempt from the state needing a "compelling interest" to disenfranchise them. Another fruitful argument could lie in the number of felonies leading to disenfranchisement being too broad. With our democracy under siege we should use all these legal arguments to restore voting rights to as many people as possible at the state level.

The state of our bail system is a travesty of justice

Since January, a dozen people have died while awaiting trial at Rikers prison in New York City. There has been a 27 percent increase in violent incidents compared to last year. Fifteen people have died at Harris County jail in Texas over three months, according to activists. A Reuters investigation found that between 2008 and 2019 nearly 5,000 people died inside jails nationwide. None were convicted. Reporters found a 35 percent rise in inmate deaths even before the covid pandemic ravaged overcrowded prisons. The current state of our bail system means that you don't need to be convicted of a crime to lose your rights — or face a death sentence. How can we claim people are innocent until proven guilty if they face jail time without trial?

There are typically around half a million people held in jail awaiting trial at any given time. These are people who have not been convicted of any charge but are awaiting trial. Holding people in jail, particularly for minor and non-violent offenses, amounts to punishing people who have not been convicted of a crime. Considering the state of our jails, people typically face violence, solitary confinement and a denial of rights without the full due process of law. Technically, those held while awaiting trial have the benefit of a bail hearing. But the imposition of pre-trial detention is arbitrary and often based on the whims of individual judges. The process creates a different judicial system for those without money, as the vast majority of people in custody awaiting trial are there because they can't afford bail.

Theoretically, those held in pretrial detention are being kept in custody to guarantee they appear in court. However, because they are treated as prisoners, though presumptively innocent, their rights are heavily curtailed. It is long accepted law that those who have been convicted of a crime do not have full access to their full rights. Pre-trial detention applies this standard to those who have just been charged with a crime, in practice if not legally, as long as the treatment of pre-trial detainees is not being imposed out of "punishment."

In 1979's Bell v. Wolfish, the United States Supreme Court created this "punishment" test. It held that restrictions on pre-trial detainees are unconstitutional only if they concern an independent constitutional right or qualify as a punishment. Practices reasonably related to managing a detention facility were not considered punishments. Prohibitions on contact visits, cavity searches or shared occupancy in a cell only meant for one were therefore constitutional for pre-trial detainees who had not yet been convicted of any crime.

The standard for considering restrictions on the rights of pre-trial detainees? If they were intended to punish or if they were reasonable practice for maintaining a facility. Courts tend to side with correction departments when determining such cases. A 2015 Supreme Court case, Kingsley v. Hendrickson, ruled that those in pre-trial detention have a lower burden for proving excessive force than someone who had been convicted of a crime and was serving out their sentence. However, implied in the case was that those held awaiting trial would be subject to "reasonable" force to keep them in line in jail.

Restrictions on contact visits are particularly violating when one considers that women are less likely to be able to afford bail and more likely to be held in custody while awaiting trial. Sixty-six percent of women in pre-trial detention have minor children. Without bail, a single mother without a safety net faces the involvement of the state's family court system and the possibility of her children being placed in foster care. Yet according to the standard the courts use to determine the treatment of pretrial detainees, losing contact with one's children, and possibly losing them permanently to the state, is not "punishment" or a violation of that presumptively innocent person's full rights.

Before the pandemic, there was some interest in bail reform. New York state passed a bail reform bill in 2019 and amended it in April 2020. It went into effect July 1 that year. The reform's initial intent was to dramatically decrease the number of people incarcerated awaiting trial by changing the process of imposing cash bail. The bill was expected to eliminate cash bail for up to 90 percent of arrests, but the April 2020 revisions expanded the qualifying cash bail cases. By expanding the types of cases eligible for cash bail, more people are held in pretrial detention unable to afford bail. The current law still prohibits cash bail for most misdemeanors and non-violent felonies. The expanded list of charges where cash bail is permitted has left bail mostly under the discretion of the individual judge. However, amending the original law prevented the needed dramatic decrease in pretrial detainees during the pandemic. Bail reform was also an issue in the 2020 Democratic primary with many candidates calling for ending or reforming cash bail. Unfortunately, federal action has stalled.

Despite calls to reduce prison populations during the pandemic, little has been done to protect prisoners, convicted or awaiting trial. In the first 13 months of the pandemic, 31,000 federal prisoners sought compassionate release. The Bureau of Prisons released 36. By June 2021, half a million had contracted covid. At the end of 2020 an estimated one in five prisoners had covid. In some states responses to the pandemic, like postponing trials, kept people jailed longer. Texas prison authorities tried reducing the population by releasing medically vulnerable inmates but Governor Greg Abbott limited their authority. In Alabama, rather than reducing the overall population, lawmakers intend to use covid relief funds to build new prisons, claiming this will lessen overcrowding and reduce the spread of the disease.

Covid has shown how dangerous pre-trial detention is, but the pandemic didn't create the crisis. People are being held for months, or years, without being convicted of a crime. They have little recourse to remedy their situations. The pressure of pre-trial detention increases the likelihood a person will plead guilty. Pre-trial detention is a classist denial of constitutional rights but it also costs the government 13.6 billion a year. We must see detention is itself punishment and encourage judges to explore other avenues of guaranteeing a person shows up for trial. Investing in ankle monitoring devices would save the government money and better protect the rights of the accused.

How family courts are skewed against women

The last few years have seen the growth of groups who call themselves "Men's Rights Activists." These are often men who think feminism has gone too far and now men are the oppressed group. Some of their favorite issues are poor incels, circumcision, rape laws run amok, and of course, that the family court system is biased against men.

While the general public has mostly dismissed these rallying cries as misogynistic and ridiculous, though incels seem to garner a bit too much sympathy for comfort, somehow the idea that the family court system is biased against men has stuck. Maybe it's because that myth is actually based on a patriarchal idea that women are natural caregivers who should be home with their children. In reality, the family court system, like most systemic systems, is biased against women and mothers, and regularly rewards abusive men.

One way the myth that family courts are biased against men is the misuse of statistics. While it is more likely that women get custody of children after a divorce, about 68-88 percent across jurisdictions, 91 percent of custody agreements are decided without any court interference and in 51 percent of child custody cases, both parents mutually decided that the mother would have full custody.

How can courts be biased when they're not even involved? Additionally when a judge gets involved and awards the mother custody, it's often based on outdated gender stereotypes or the assumption that men don't want full custody (that's not exactly a feminist victory).

Men's Rights Activists will use the fact that women usually get full custody of children as proof that the system is biased against men without including the context that most men don't fight for full custody. It's also important to note that an arrangement with mothers having full custody doesn't mean fathers never get to see their children. Mothers are often awarded full physical custody so that children aren't shuffling between homes during the school week.

Women are more likely to get custody, which means they're also more likely to get child support orders — a fact that, of course, serves the myth that the family court is biased against men. I'm sure you've all seen narratives about women spending their exes money meant to support children. Unfortunately, despite the orders, only 44 percent of child support orders are collected in full and about 30 percent of those owed child support received no payments at all. Single parent households are more likely to be headed by women and more than 30 percent of households led by unmarried women live in poverty (compared to 15 percent of households led by unmarried men).

Unfortunately, when one considers divorce cases where there is actually abuse, we do see there is family court bias — in favor of fathers. Many of the custody cases that go to trial involve domestic abuse of some kind. These are called "high conflict" divorces.

The abuser often controls the money and can afford a better lawyer while appearing more amenable and "stable" in court. In contrast, an abused woman might appear emotional and combative, which can turn off a judge and be used against her. Additionally, family courts favor the parent who wants to maintain the children's relationship with the ex. If a woman is afraid of her abuser, she's not inclined to prioritize contact with her ex. Abuse results can often make a woman seem less fit as a parent. She might have PTSD or have been isolated from a support system. If a woman seems angry or too emotional in court, this will be used against her. Accusations of abuse will also be suspect as opposing counsel can dismiss them as a ploy to win custody.

Battered women's advocates suggest that many high conflict divorces result from abuse even if it isn't brought up during litigation. While there isn't much research on the subject, a 1997 study suggests that domestic violence is an issue in 20-55 percent of contested custody cases. A 2004 study actually showed that bringing up domestic violence during a custody battle made it more likely a woman would lose custody of her children. However, if a mediator discovered the abuse without the mother bringing it up, they were likely to recommend forms of protection like supervised visits.

Unfortunately, children testifying to abuse doesn't always help, even if the children are the ones being abused. In 1985, child psychologist Richard Gardner coined the term "Parental Alienation Syndrome" to describe a set of behaviors he saw in children to explain why they were hostile or afraid of one parent. The "syndrome" was famously used by Woody Allen against Mia Farrow to discredit Dylan Farrow's abuse. Parental Alienation Syndrome (PAS) has no empirical studies backing it up, was excluded from the DSM and has not been accepted by major medical or psychiatric associations. But that hasn't stopped courts from accepting evidence of PAS to ignore testimony about abuse.

Richard Gardner was convinced there was hysteria around false sexual abuse claims in the 1980s, which likely colored his work. His 1987 book on the syndrome, The Parental Alienation Syndrome and the Differentiation Between Fabricated and Genuine Child Sex Abuse is full of sexist explanations for why he thought a "vindictive" mother, because of course he said it was usually mothers, would want to turn a child against their father using false sexual abuse allegations including the classic "Hell hath no fury like a woman scorned." Gardner would recommend that children be placed with the spouse who didn't "concoct" false sexual abuse allegations over the child's objections.

While some parents claim PAS is real, and while some parental alienation might exist, there is no proof of a recognizable syndrome. Unfortunately, that doesn't stop some courts from still considering it. One study found that abuse claims make it more likely the person bringing up the allegation loses custody and that alleging parental alienation by a father doubles the likelihood a mother loses custody.

As long as our larger legal system is biased against women, and populated by judges with patriarchal conditioning, the family court system will replicate those biases. We can't allow decontextualized statistics about custody to blind us to the reality of the family court system's complicity in covering up abuse. Family courts must have better screening systems for abuse, must not be immediately suspect of abuse allegations, and absolutely must connect physical abuse to parenting skills. Claims that the family court system is biased toward women are not only wrong, but serve to hide the ways in which abusers are able to manipulate the system for their own benefit.

What would justice look like if all missing women got the attention Gabby Petito did?

The mysterious disappearance of Gabby Petito took the internet by storm. Gabby Petito's boyfriend, Brian Laundrie, returned home from a heavily documented road trip without her. Because there was so much information available online, her story captivated true crime fans and led to amateurs combing through every social media post.

The fact that Laundrie, the obvious suspect, had fled authorities only added to people's intense interest. Despite the intense media attention to the case, something many have rightly pointed out only happens if the victim is young, pretty and white, Gabby's body was found in Wyoming and her cause of death has been ruled a homicide. As this article is being written Laundrie has still not been captured by authorities after being on the run for five days.

Women in particular are drawn to true crime stories, especially those where other women are the victims of domestic violence, because we live with the danger of that violence in our everyday lives. Seeking out true crime stories not only provides us with tools to learn about our fears, and hope that if we learn enough we can protect ourselves, but also hopefully access the possibility of justice that in real life is sorely lacking in response to violence against women.

Domestic violence is the leading cause of physical injury to women, and more than half of female homicide victims are killed as a result of intimate partner violence. Currently 25 states have some form of "mandatory arrest" law for domestic violence but many of those laws still require the officer's discretion to determine if there has been a domestic violence incident. A 2009 study found that in 70 percent of police investigated domestic violence incidents prosecutors decline to bring charges. When men are convicted for killing an intimate partner, they only serve 2-6 years in prison on average.

In Utah, where police responded to a domestic violence 911 call about Brian Laundrie slapping Gabby Petito, the law is written with a lot of police discretion: "If the peace officer has probable cause to believe that there will be continued violence against the alleged victim, or if there is evidence that the perpetrator has either recently caused serious bodily injury or used a dangerous weapon in the domestic violence offense, the officer shall arrest the alleged perpetrator into custody." Police had the 911 call that reported that Laundrie slapped Gabby Petito multiple times and chased her down, but body cam footage shows the police joking with Laundrie about histrionic women and only urged the couple to spend the night apart. They had the ability to arrest Laundrie under the mandatory arrest domestic violence law, but claimed there was insufficient evidence.

Historically, true crime interest has been more prurient and lurid. It first developed in the 19th century with newspapers sensationalizing the murders of young women. They would be described as beautiful and drawn in sexualized poses in death. The public couldn't get enough of reading about young unmarried murdered women like Helen Jewett, but the press coverage rarely resulted in convictions even when police made an arrest. Instead the men who killed these women were let off with bizarre defenses like sleep walking or accidental drowning with no water in the lungs. The "beautiful female murder victims" were all young, white unmarried women. Black women weren't even seen as victims by society and the violence against them went unnoticed as well as unpunished.

Very little has changed in terms of prosecuting violence against women. White women, like Gabby Petito, still get the attention of the media while Black and brown women are completely ignored. Black women experience intimate partner violence at a rate 35 percent higher than white women and over half of Indigenous women have experienced physical violence by an intimate partner.

Despite the outsized media attention in Gabby's case and the large public interest, statistics tell us she will likely never get justice. Gabby's experience of domestic violence was still ignored by police, supporting the idea that police shouldn't even handle domestic violence, and murdered. Gabby's likely murderer is on the run and even if he is caught might never be convicted. Interest in her case was not out of a deep concern for domestic violence and harm to women, but instead because young, pretty, murdered white women make good tv. However, that interest still helped to find her body and give her family some answers. In some cases the media interest in missing white women can actually help us find them alive. So while our true crime obsession rarely leads to actual justice for murdered women, if we put some of our attention to missing Black and Brown women we might bring a few more of our sisters home.

Consider supporting the Black & Missing Foundation and the National Indigenous Women's Resource Center.

How Ruth Bader Ginsburg envisioned changing Roe v. Wade

Buckle up for my fourth column on the state of abortion in less than two months and my third addressing the new Texas six-week abortion ban. It looks like the federal government is interested in taking up the fight, but how successful it will be is still left up in the air. When facing gerrymandered Republican controlled states and a Trump-packed federal judiciary, we need to fight these laws with every tool we have. That means grassroots advocacy and support, federal lawsuits and, hopefully, federal legislation. I know this is all overwhelming, which is why I'll write as many columns on abortion access as we need.

The United States Supreme Court allowed a six-week abortion ban in Texas to go into effect, because it found the new procedural questions just too baffling to handle. Apparently, if you want to pass a blatantly unconstitutional law, all you have to do is ignore longstanding civil procedure and have civilians enforce your law through civil court, thereby bypassing the need for state actors! Sorry, but you too would be snarky if you had been covering this ridiculous law that would be laughed out of a 1L civil procedure class for almost two months.

Anyway, with the decision by SCOTUS to let the law go into effect, the likelihood of a successful judicial challenge remains unclear. Luckily, a lot of people are still trying. There was a small judicial victory last week when a Texas judge temporarily blocked one anti-abortion group from suing one abortion provider. Judge Maya Guerra Gamble's ruling stops Texas Right To Life from suing any workers or abortion providers at Planned Parenthood clinics. While it doesn't do anything to the law generally, the ruling does take a step to protect those providing abortions and stop one of the groups most dedicated to funding suits under the new law.

Judge Gamble managed to see the clear harm where SCOTUS was confused when she wrote "The Court finds that SB 8 creates a probable, irreparable, and imminent injury in the interim for which plaintiffs and their physicians, staff and patients throughout Texas have no adequate remedy at law if plaintiffs, their physicians, and staff are subjected to private enforcement lawsuits against them under S.B. 8." This same group, Texas Right to Life, also faced a setback when GoDaddy gave it 24 hours to find a new host for its website. The group moved to Epik which has a history of hosting controversial conservative sites. Despite Judge Gamble's ruling, many Texas abortion providers will still be wary about performing abortions under the new law and it will still serve to make abortions more difficult to access even without enforcement. The ruling will more likely save clinic workers from harassment and frivolous suits temporarily, an important aspect, than actually help people access abortions.

While the exact path of judicial challenges remains unclear, because Texas purposely is trying to thwart judicial review without including state enforcement, the Justice Department has brought suit against Texas in a US District Court in Austin. The Justice Department's complaint uses appropriately strong language to call out Texas' clearly unconstitutional law and, in fact, says that SB8 was enacted "in open defiance of the Constitution." It also plainly addresses the motivation behind the law which is to escape judicial review.

The suit also says that SB8 unconstitutionally impairs federal interests by prohibiting federal actors and agencies from "carrying out their responsibilities under federal law related to abortion services." The Hyde Amendment, which prohibits federal funding from going to abortions, has three exceptions that allow for the federal government to support abortions in the cases of the life of the mother or rape or incest. SB8 has an exception if the life of the mother is at stake but not in the cases of rape or incest and so, the complaint argues, could interfere with federal actions. Abbott has defended the law not having rape or incest exceptions by promising to eliminate rape and by claiming a six-week abortion ban provides six weeks to get an abortion if raped (best case scenario, it only provides two weeks). While we have no idea if this legal challenge will work it seems likely that it is just the first federal attempt to protect abortion rights.

Considering the conservative lean of the federal judiciary right now, thanks to Trump pushing through so many judges, many are looking to a legislative solution to the abortion crisis. After the Supreme Court's decision to let SB8 stand, Speaker Nancy Pelosi announced the House will vote on the Women's Health Protection Act, hopefully enshrining abortion protections into federal law. The WHPA would make it a right for patients to access abortion care and for healthcare workers to provide abortions. The WHPA is often described as a law that would "codify Roe" into law. While it doesn't literally write it into law, it does use similar justifications of the rights of doctors to protect pre-viability abortions. It protects against unnecessary procedures and restrictions as well as post viability abortions if there is a "good faith" determination by a medical provider that its necessary.

Now I hope this legislation makes it into law, and that somehow the Senate votes for it or we manage to get rid of the filibuster, but I think we can actually enshrine abortion into law with even stronger protections. Roe was decided based on a guaranteed right to privacy which was built on the legal justifications for a right to birth control in Griswold v. Connecticut. Many legal scholars, including Ruth Bader Ginsburg, think a privacy justification is a weaker legal foundation.

Ruth Bader Ginsburg argued for abortion protections based on an equal protection justification rather than privacy or any free exercise of the rights of a physician. Not only did Ginsburg think this would be a stronger justification legally, that would better hold up under further scrutiny, but it also has the benefit of being the real reason we need abortion protections. Without strong protections for reproductive healthcare women, trans men, and non-binary people can never have equal access to society or be treated equally.

Abortion is virtually banned in Texas — but Roe still rules for now in the other 49 states

Somehow, without even so much as an oral argument and barely any news coverage, Roe v. Wade was invalidated in Texas with a cursory unsigned majority opinion refusing to grant an injunction to halt a new Texas anti-abortion law from going into effect. Confused? Pissed off? What to do next? You're not alone. I'm feeling all of that and then some right now but I'm also going to do my best to explain what happened.

I wrote about it in July. Basically the law in question, SB8, makes abortion illegal once a heartbeat can be detected (about 6 weeks), which would outlaw 85 to 90 percent of abortions. While far from the first attempted six-week ban, this law is having unprecedented success, because it employs a new enforcement mechanism.

Usually, when a state outlaws something, the enforcement of that law is placed in the hands of state actors and criminal courts. Since a six-week abortion ban blatently violates standing legal precedent that guarantees abortion, federal courts have consistently overturned such laws. The legal redress to bring a suit in federal court is clear, because these abortion bans were enforced by state actors. What this new law does is place enforcement in the hands of private citizens.

Rather than arresting an abortion doctor or a pregnant person who gets an abortion, an individual is expected to sue anyone who gets an abortion, or aids in getting an abortion, in civil court. If they win, they can be awarded $10,000. What's truly bizarre is that unlike every other example of civil litigation ever, the person bringing the suit does not need to have "standing" or be involved in the case in any way. Financial judgments in civil suits are supposed to be made as redress for harm or personal damages. According to this law, one need not be harmed in any way to bring a suit. Their financial award is basically a payment for enforcing the anti-abortion statute, like a bounty hunter.

What happened was that the Supreme Court let the law go into effect without supporting an immediate injunction. There were no oral arguments or even a signed majority opinion but instead allowed an unconstitutional abortion ban to stand through the "shadow docket," which has come to refer to these types of decisions that are outside normal procedures for cases and often result from emergency appeals. The majority issued an unsigned decision that refused to stop the law from going into effect because of the "complex" procedural questions, but said their decision was "not based on any conclusion about the constitutionality of Texas's law." Basically, the majority rewarded Texas' blatant legal maneuver to circumvent the federal court system and allowed a law that is unconstitutional to take effect.

While the majority provided a paragraph to explain its reasoning, the dissenting four justices (Chief Justice John Roberts joined the liberals) each wrote a separate opinion explaining why an emergency injunction should have been issued. I wish I could say Roberts joining the liberal wing and dissenting was encouraging. For one thing, he's an institutionalist and he cares about the legacy and balance of the court. If the make-up was different and the decision was 4-4 with him as the swing vote, he might have joined the majority. For another, Roberts argued an injunction should have been granted "to preserve the status quo ante — before the law went into effect — so that the courts may consider whether a state can avoid responsibility for its laws in such a manner." Roberts very well might sustain the constitutionality of the six-week ban if it had time in the federal courts and arguments were presented. He also likely will side with the majority to overturn Roe in the upcoming case Jackson Women's Health Organization v. Dobbs.

Kagan's dissent importantly criticizes the use of the shadow docket and Sotomayor's brings the fiery defense of abortion rights we so desperately need, as well as the accurate portrayal of the Texas law as basically empowering civil-law bounty hunters. It is Breyer's dissent, however, that might suggest some helpful legal arguments. As I've explained, the law avoids traditional constitutional review by avoiding the involvement of state actors. But Breyer suggests that issue has already been addressed by a 1976 case. In Planned Parenthood of Central Mo. v. Danforth, the court said a "State cannot delegate … a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy," and "since the State cannot regulate or pro- scribe abortion during the first stage … the State cannot delegate authority to any particular person … to prevent abortion during that same period." In this case, the state struck down a requirement that a person get written consent from a parent or a spouse but the opinion does seem to be on point for non-state actors generally.

So what do we do now? Honestly, I'm not sure. Both the majority and the chief justice emphasized that this decision should not be taken as a ruling on the constitutionality of the law, which leaves open the likelihood of additional legal challenges. Unfortunately, in the meantime the law is in effect and abortions are not being performed out of fear of civil suits. One of the reasons I can't say what will happen is because we don't know what judges will do or how other legal challenges will play out. However, it is important to note that technically Roe hasn't been overturned. Overturning Roe would affect national abortion coverage and abortion would be immediately illegal in 13 states. Luckily we're not giving up and many are committed to fighting this unconstitutional bizarre civil procedure quagmire.

So what can you do? Support organizations like the Center for Reproductive Rights, which is a legal advocacy group for abortion rights. Donate to abortion funds in Texas and all over the South that are doing their best to continue abortion care. Consider supporting Frontera Fund, the Afiya Center and Yellowhammer Fund. RAICES, an immigrant organization in Texas, has issued a statement vowing to not obey the new law and continue to help people access abortion. Organizations like Carafem are committed to helping people in states with restrictive access laws. There has been some fearmongering about Texas going after out of state residents for aiding in accessing abortion but I agree with Imani Gandy's interpretation that only in-state actors will be sued.

Make abortion the election issue in 2022. Find out whether your state has a law protecting abortion. If it doesn't, call your representatives to urge them to pass legislation and only vote for elected officials committed to passing such legislation. Call your federal representatives and urge them to pass legislation codifying abortion in federal law. Pelosi has already said the House will vote on abortion legislation after the recess and Biden has committed to launch a federal governmental effort at protecting abortion. Oh, and keep flooding the anonymous reporting website in Texas with false tips.

The Repro Legal Helpline provides free and confidential legal advice: 844-868-2812.

There’s no such thing as law to police trans women that wouldn’t ultimately hurt all women

Since our decision to withdraw from Afghanistan, many are rightly concerned with the Taliban's oppression of women. Will women and girls be able to continue their education or work outside the home? How will they have to dress? There are already reports of forced marriages of adolescent girls being taken from their families. The founder of an all-girls boarding school in Afghanistan, Shabana Basij-Rasikh, said she burned all the records of her students to protect them from the Taliban. Many staff and students from the school have fled to Rwanda. Unfortunately some conservatives and "gender critical" activists, or trans exclusionary radical feminists (TERFs), have taken this crisis as an excuse to support their exclusionary ideology.

A common argument among anti-trans activists is that women are oppressed because of "sex" or biology and that gender oppression, what they see as the oppression faced by trans women, is fundamentally different. Conservative author Allie Beth Stuckey tweeted: "A reminder that women and girls are persecuted in Afghanistan, because they are women and girls, not because they identify as such. Biology matters when we're talking about female abuse, rights and safety." Many questioned if trans women would still want to "identify" as women under the Taliban. Some even challenged the validity of trans men with their comments by pointing out that trans men wouldn't be allowed to fight, thereby somehow proving in their twisted logic that the oppression under the Taliban was only based on sex and not gender.

Proponents of anti-trans laws say they are meant to protect cis women from violence; but these laws would force cis women to share public bathrooms with very masculine-presenting trans men.

These tweets are deeply offensive, show a severe misunderstanding of gender and sex oppression, and seem to bizarrely suggest that trans women would somehow be safer under the Taliban than cis women. Journalist Katelyn Burns responded to Stuckey's tweet by wondering if she thought the Taliban would just let a trans woman go if they realized she was "biologically male." She pointed out that trans women in Afghanistan were largely closeted and faced violence and oppression even before the Taliban came back into power. Anti-trans activists are clearly trying to suggest that being a trans woman is a choice that people can just opt out of if living as a woman is too difficult rather than understanding that living as a closeted trans woman is deeply oppressive in and of itself. Not to mention that trans women are in extreme danger if they simply try to live as themselves.

This twisted logic relies on a strange argument that attempts to draw a distinction between sex and gender discrimination. The claim is that while both cis and trans women face gender oppression — oppression based on socially constructed notions of gender — only cis women can face sex oppression, which is oppression based on "being born female." TERFs will point to examples like FGM (female genital mutilation) or abortion restrictions as oppression that can only apply to those who are "born female." However, while FGM is only practiced, to my knowledge, on those who are assigned female at birth, the ideology behind such a practice is still patriarchal gender policing. The motivation for such a practice is still gender oppression.

While trans women might never need an abortion, the emphasis on abortion as being a need for all "biological women" is harmful to both trans men, non-binary people and cis women. Both trans men and non-binary people might need an abortion, birth control and other types of reproductive healthcare. The argument reduces womanhood to reproductive capability. Many cis women never get pregnant or have the ability to get pregnant. We also don't want to parse a change in womanhood after menopause or a hysterectomy. Fertility issues for women who want to get pregnant come with enough trauma without adding exclusion from womanhood. Gender inclusive language around reproductive care is good for everyone, including cis women.

While in common parlance "sex" and "gender" have different meanings, from a legal standpoint there really isn't a difference between sex and gender discrimination. Prohibiting discrimination because of sex (in housing, education, healthcare, and employment) includes discrimination because of a person's gender identity. The ACLU defines sex discrimination as occurring "when a person is treated less favorably because of that person's sex, which includes sexual orientation, gender identity or expression, pregnancy or pregnancy-related condition (including lactation), or a sex stereotype." Sure pregnancy and lactation are biological functions, but gender identity or expression clearly includes trans people under the umbrella of sex discrimination. In reality, all discrimination against women, cis and trans, stems from patriarchy and all women benefit from trans-inclusive laws that fight against patriarchal structures.

Trans-exclusive policies ultimately harm cis women as well as trans women because determining who is trans and who is not involves policing gender expression. Any woman deemed not feminine enough could be ensnared by these policies. Consider R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, a case in which the United States Supreme Court ruled that Title VII bars discrimination on the basis of gender identity. Aimee Stephens, the plaintiff, was fired from her job at a funeral home after coming out as transgender. The funeral home argued Stephens did not wear work attire matching the sex Ms. Stephens was assigned at birth. The Trump DOJ backed the funeral home's claim. While aimed at trans women, such a policy could hurt cis women as well. The policy policed gender expression through attire and could easily force a cis woman to wear more skirts or heels. All cis women should be very happy the Supreme Court sided with Aimee Stephens and included gender identity in the protections of Title VII for employment discrimination.

Bathroom discrimination laws, intended to force people to use bathrooms that correlate to one's assigned sex at birth, also harm both cis and trans women, as well as trans men. Proponents of these laws say they are meant to protect cis women from violence; but these laws would force cis women to share bathrooms with very masculine-presenting trans men. These bathroom laws also ultimately police the gender expression of cis women just like the dress code policies.

How do people know if a person going into a women's bathroom is really trans or cis? They don't. They make assumptions based on the gender expression of the woman going into the bathroom. A more masculine looking cis woman could easily be stopped from going to the bathroom. Since sex discrimination isn't included in federal public accommodations law, laws that address facilities both public and private but used by the public (like a restroom in a restaurant), these discriminatory bathroom laws could still be upheld.

Many states have passed anti-discrimination laws protecting trans people's rights concerning public accommodations, but some states are still trying to police trans people's use of public bathrooms. A bill was introduced in Indiana this year to make it a misdemeanor for trans people to use the bathroom corresponding to their gender. The bill's language specifies that people with XX chromosomes cannot use the men's bathroom and people with "at least one Y chromosome" cannot use women's bathrooms. One wonders how they plan to check people's chromosomes while walking into a restroom.

Sex discrimination must include gender identity if we want to protect all women and fight the policing of gender expression. Excluding gender expression from our understanding of sex discrimination would allow for forcing cis women to present in certain stereotypically "feminine" ways. Trans women are women and all trans people must be protected for women to be truly free. There is no law to police trans women that wouldn't ultimately hurt all women. The Taliban's oppression of women, and extreme hostility towards trans people, only serves to exemplify how intertwined our liberation really is.

Conservatives are recycling a claim from World War II to oppose bringing in Afghan refugees

United States immigration and naturalization history is one of grouping people into "desirable" and "undesirable" immigrants. There was a short period after 1967 when the US accepted refugees outside of this "desirability" framework based on humanitarian concerns. Until the Trump administration, the US was considered a leader in accepting refugees, many years accepting more than all other nations combined. That changed with Trump policies in 2017. Reversing immigration and refugee restrictions should have been an easy decision for the Biden administration, but unfortunately asylum seekers are still facing obstacles to admittance justified through claims of covid safety protocols, and therefore making refugees "undesirable" based on incorrect understandings of disease spread. With our withdrawing from Afghanistan, the issue of refugee admittance has taken on new urgency. We have a general moral duty to accept refugees, but we owe even more to the Afghan refugees who worked with the US military forces and journalists for the last 20 years.

During the Trump administration, refugees and asylum seekers were conflated with undocumented immigrants to the point that people assumed those who crossed the border as asylum seekers were doing so illegally. In order to seek asylum a person must cross the border and claim asylum status within a year of entering. Many held in detention camps crossed the border legally to claim asylum but were held, and separated from their children, while awaiting a hearing. This was a change in policy from earlier administrations when those held while waiting could remain with family and often could be released with the assumption they would return for their court date. Similarly, the past administration contributed to the idea that refugees, any person applying for refugee status must be located outside of the US, were unvetted and the refugee program was a way for criminals or terrorists, or disease carriers, to sneak into the country. Therefore refugees were automatically associated with other "undesirables."

Undocumented immigration, or "illegal" immigration, did not exist in the United States until the late 19th century, and therefore refugee status was not needed to enter the country. Of course that didn't stop racism and nativism from affecting immigration. Immigration was fairly unregulated in this period but naturalization, the process of becoming an American citizen, was a different story. The 1790 Naturalization Act established that "free white persons" who had resided in the US for at least two years may be granted citizenship if they demonstrated "good moral character." This was governing law, with a few changes to the required years of residency, until the Naturalization Act of 1870 included "aliens of African nativity and to persons of African descent." Whiteness and "good moral character" (both arbitrarily defined) were requirements to naturalize a citizen for much of American history. The laws made whiteness and "morality" a requirement for desirability. It wasn't until the Immigration and Nationality Act of 1965 that race and ethnicity were eliminated as a basis for exclusion in immigration and naturalization law.

The first exclusionary immigration law passed in the US was the Page Act in 1875. It restricted entry to certain "undesirable" immigrants that included criminals, prostitutes and Chinese laborers. The Page Act was also gendered, as it was used to deny entry by Chinese women believed to be prostitutes. The Page Act was unique in that it centered morality and desirability explicitly in immigrants. The Chinese Exclusion Act in 1882 went further than the Page Act by banning Chinese laborers for 10 years and denying Chinese immigrants any path to citizenship. This was the first federal law that provided a framework for illegal immigration, which effectively didn't exist before. The Bureau of Immigration was created in 1891 with the Immigration Act of 1891 that modified the Chinese Exclusion Act of 1882. The same act called for deportation for immigrants who entered illegally. This was the first immigration law that discussed deportation or punishment for entering the country illegally. This law was also the first to recognize "refugees" as a separate immigrant status.

In 1921 and 1924, the US passed the Emergency Quota Act and the Immigration Act, which enforced racist quotas for immigration based on nationality that favored North West Europeans and made immigration more difficult for everyone else. While refugees were still a recognized status of immigrant, they were also subject to these racist quotas. During World War II, thousands of Jewish refugees were turned away largely as a result of the racist quota system. Turning away Jewish refugees was also justified by claiming they could really be Nazi spies disguised as refugees (sound familiar?), as if there wasn't a way to vet people. International and humanitarian law fundamentally changed in a response to the Holocaust and the Jewish refugee crisis. As an immediate response the US allowed in 40,000 immigrants in 1945 after Truman authorized displaced persons and refugees expedited admission, but this didn't change existing immigration law.

The first law passed in the US that directly dealt with refugees was the Displaced Persons Act of 1948 but it expired in 1952 and was meant to specifically address the postwar crisis. The act allowed displaced persons to bypass the quota system, but they were required to find a job that would not replace a worker already in the country, enforcing a second-tier status. In 1951, the United Nations held a convention on refugees that defined refugees and their legal protections. A refugee is someone who can demonstrate they were persecuted or fear persecution due to race, religion, nationality, political opinion or membership in a particular social group. The US did not sign on to an international agreement until the 1967 Protocol Relating to the Status of Refugees. After the Displaced Persons Act of 1948 expired, the Congress passed a number of laws to address specific crises but it was not until the 1965 passage of amendments to the Immigration and Nationality Act that the quota system was removed and a permanent refugee program was instituted. The INS finally created a dedicated office of Refugee and Patrol in 1977 and the Refugee Act of 1980 created a clear uniform policy for the admission of refugees that also created the Office of Refugee Resettlement.

After 9/11, the US Department of Homeland Security and Immigration and Customs Enforcement (ICE) were created. The also newly formed US Citizen and Immigration Services now carries out refugee policies. The last 20 years have seen a marked change in the enforcement of immigration and narratives around refugees, amplified by the Trump administration but not created by it. Refugees are some of the most vetted people in the US. They are the safest and least likely to commit crimes. Yet conservatives have recycled a claim used during World War II, that Nazi spies could be hiding among Jews, and applied it to contemporary refugee crises. Trump claimed Syrian refugees posed a terrorist threat and would lower the quality of life for Americans.

We have an absolute moral imperative to let in as many Afghan refugees as possible because of our role in their current crisis. But we also must be wary of leaning too hard on certain refugees, or immigrants, being more "desirable" than others. Refugees must be welcomed into the United States even if they did not serve as interpreters to the Army and even if it is a global pandemic.

To help people in Afghanistan right now, donate to Baba Mazari Foundation.

There's only one real way to fight catastrophic climate change

The United Nations recently released a pretty terrifying climate report that not only states unequivocally that climate change is real and caused by people, but there's nothing we can do to stop the warming of the world for the next few decades. Literally, no matter what we do, we are locked into the warming effects of climate change until at least 2050. It's hard to say the report has any good news, but it certainly isn't hopeless. It tells us that with a rapid and aggressive response we could turn this around so that it doesn't get worse after 2050 or maybe even gets a little bit better if we can reach "net zero" emissions.

The problem is for the last few decades there has been little serious movement at a governmental or corporate level to address global climate change. Without much agency, we seem to cling to the myth of individual culpability with regards to how our personal choices can impact climate change. Don't get me wrong. I truly believe our individual choices are important and there are many things we can do in our day-to-day lives that have important large-scale effects. But climate change is just in an entirely different category. We can recycle, eat local and avoid single-use plastic to our heart's content but without large-scale change we will never control climate change.

One big problem with focusing on individual culpability with regard to climate change is that knowing the best choice can be very difficult. For example, some choose to adopt a vegan diet to avoid the harm done to the environment by factory farming and contribution to greenhouse gas emissions. But vegan diets often rely on foodstuffs that must be imported from long distances, especially if one is eating the same food year round. There are also crops, like almonds and mushrooms, that have a high environmental impact when processed for vegan substitutes. Dr. Sarah Taber, a crop scientist, also wrote a twitter thread explaining that many historically cultural low meat diets have been from places with a lot of natural irrigation. Her thread also draws attention to another sustainability issue with veganism that most parts of plants aren't edible and so if they're being grown just for food a lot is discarded. Her thread also brings up colonialist issues with veganism that looks at sustainability issues through a Eurocentric assumption about land and water issues. And this conversation isn't even getting into the labor and cultural issues that can arise from a crop like quinoa suddenly being a staple of non-local diets. Individuals simply can't be expected to have all the information about which hybrid car uses the right materials or which crop uses the least water.

Even if we had the information to make the right decisions, the world isn't currently set up to support us doing so. Car pollution is a huge contributor to climate change but there isn't much we can do on an individual level. If one lives outside a populated city, there are virtually no public transportation options. We desperately need a serious investment in public transportation throughout the country. (See my colleague Brandon Bradford's recent piece for the Editorial Board.)

Additionally, public transportation needs to be environmentally conscious. While it's obviously better to take a bus then drive yourself, we don't have the power to choose to take an electric bus vs a traditional one. We have to get on whatever bus stops at the bus stop. Even though remote working options were used whenever possible last year, reducing the carbon emissions from constant daily travel, companies are already pushing people to go back to work even when job performance didn't suffer. We can also choose to reduce our individual electricity consumption or install solar panels, but as individuals we have no control over our community's power grid or the energy company's disinterest in adopting renewable energy solutions. We can also try to be conscious of which companies we support in order to encourage corporate responsibility and effort, but with almost every company making a commitment to environmentally friendly practices and providing little transparency, it's almost impossible to use the free market to apply pressure.

We need to ensure that our actions on climate change don't harm marginalized communities, which usually requires policy experts to actually put in some research. The straw ban is a quintessential example of this. There was public pressure to enact bans on plastic straws, which are bad for the environment, all single use plastic is, and were having a particular harm on sea turtles. Unfortunately, these bans were made based on public pressure and didn't consider the harm that would be done to disabled people who need plastic straws for a variety of disorders. There currently is no other straw type available, (paper, metal, etc), that doesn't cause a significant problem for some disabilities. While the straw ban got a lot of attention, this is a serious issue for attempts to ban single-use plastic. Does that mean we just accept that single-use plastic must be used at its current levels? Of course not. But we should absolutely do things like pass regulations requiring corporate packaging to change and developing more sustainable plastic substitutes without taking an action that will harm disabled people. (No one needs that awful clamshell packaging which also is ableist nonsense as well as horrible for the environment)

The United States actually has a history of passing important legislation to protect the environment. When the Environmental Protection Agency was created in 1970 it had broad bipartisan support. With the additional passage of the Clean Water and Clean Air Acts, Richard Nixon bizarrely was one of our most environmentally friendly presidents. In the decades that followed, we saw a 75 percent drop in lead levels in people's blood, nearly half of the nation's superfund sites have been fully addressed, and with the help of the Montreal Protocol, actually mended the hole in the ozone layer.

Public pressure forced Nixon's hand to pass environmental legislation and we can do it again. Individual actions can't solve climate change but we can use our individual actions to force the hands of our elected leaders. In the bipartisan infrastructure bill, the Senate included money to protect vulnerable communities against the damage of climate change and repair coastal habitats. The bill includes money for public transportation and for replacing diesel-powered buses with electric ones. This is far from enough and we must keep the pressure on to respond to the crisis with aggressive policies from an environmental justice perspective to insure the most vulnerable communities are taken into account when considering solutions.

If you need help knowing what to advocate for, you can visit Project Down's list of solutions that many people are already working on.

These law professors ask the Supreme Court to use the 14th Amendment to outlaw abortion

Despite years of Republican attacks, Roe v. Wade is still law. Abortion is still legal in all 50 states. Unfortunately, the challenge we have been bracing ourselves for might finally be at the Supreme Court. On May 17, 2021, the United States Supreme Court agreed to hear Jackson Women's Health Organization v. Dobbs. It will be the first consideration of the constitutionality of pre-viability since Roe. (For more, see an earlier piece I wrote on an attempt to get around the issue.) If the court sides with Mississippi, Roe will likely no longer stand as the controlling precedent around abortion in the United States. It could be outlawed after 15 weeks, even six.

There are many conservative arguments against legal abortion, but an amicus brief ("friend of the court" paper) by distinguished law professors John M. Finnis and Robert P. George offers a particularly enraging justification for outlawing abortion. They offer common law and legislative history to argue that the writers of the 14th Amendment, which Roe uses to protect abortion, would have considered "persons" to include "unborn children" and that fetuses are "persons" from the time of conception, not "quickening" or "stirring."

I'm going to get into all the specifics that are wrong with their argument, but possibly the most blatant error is that for this argument to work, the Supreme Court would have to apply contemporary interpretations of the Equal Protection Clause of the 14th Amendment for everything except our understanding of "persons."

I read the entire 42-page brief so you don't have to. It is one long example of cherry-picking evidence devoid of historical context. What's relevant is Section 1 of the 14th Amendment, which is written as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The section is generally broken up into the Citizenship clause (first sentence), the Privileges and Immunities clause (first clause of the second sentence), the Due Process Clause (middle of second sentence) and the Equal Protection Clause (last clause of the section). Abortion is considered protected by the right to privacy, which the Supreme Court has interpreted to be included in the "liberty" aspect of the Due Process Clause.

The argument in Finnis and George's brief is built on an exchange during oral arguments in Roe. Texas lawyers argued at the time that "the fetus is a 'person' within the language and meaning of the 14th Amendment." However, Justice Harry Blackmun responded that, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." Finnis and George are arguing to overturn Roe v. Wade because they disagree with Justice Blackmun's conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn."

Finnis and George limit their discussion of the definition of "persons" to the Due Process Clause and the Equal Protection Clause. If they discussed the definition of "persons" in the whole section they might run into a pretty big problem: parts of the amendment clearly only apply to "citizens" which are defined as "persons born or naturalized" in the United States (my italics). So it's pretty clear you can't be a citizen, or be granted the privileges and immunities of a citizen, unless you are either born or naturalized in the US. The "unborn" are excluded from that. To be fair to Finnis and George, the Equal Protection Clause has been interpreted to protect all immigrants, including those who are undocumented, considering they are "within its jurisdiction." In Plyler v. Doe, the Supreme Court ruled that undocumented children could not be discriminated against in terms of education in 1982. Due Process rights also theoretically apply to all immigrants, but that often looks very different in practice.

While I found some tweets of Robert George's criticizing the treatment of immigrants during the Trump administration, one wonders how far conservatives would be willing to take this expansive definition of "persons" if it included protections for undocumented immigrants and asylum seekers. Perhaps this brief could support rights for the "unborn" of undocumented immigrants. Maybe pregnant women shouldn't be deported until they've given birth. Or maybe the "unborn" of women who are citizens should already qualify for welfare benefits or CHIP insurance benefits even if the mother is uninsured. Could one open a life insurance policy on the unborn?

Finnis and George spend much of the brief arguing that common law defined "persons" as including unborn fetuses, that common law considered abortion to be a crime and that common law thought life began at conception, not "quickening" or "stirring." Quickening or stirring are historical terms that describe a time during pregnancy when the fetus literally starts to move or "stir" in the womb, commonly around the middle to late second trimester. Before pregnancy tests, sonograms or scientific understandings of "viability," movement in the womb was the clearest way to know life was growing inside a woman. Before quickening, pregnancy was often seen as an "interruption of the menses." The common law sources cited in the brief even use terms like "quickening" and "stirring" but Finnis and George try to brush this off, first by claiming the words could have just been referring to any pregnancy, then by arguing science had advanced to show "a distinct human being begins at conception." Since we still don't have that science today, I would love to know what they're talking about.

Finnis and George ignore that if we are using the original intent of the 14th Amendment, it would really predominantly apply to the civil rights of Black men and correcting the damage done by slavery. The Slaughter-House Cases and Strauder v. West Virginia make this point, as do a number of cases that refuse to include women in the specific "privileges and immunities" protections of the Amendment. Considering women could be deprived of their property, liberty and sometimes citizenship (if they married a citizen of another country, women could lose their American citizenship), it's not clear how much women were included in "personhood" at the time the 14th Amendment was ratified, so you understand that I'm a little wary about applying the original intent of the amendment too stringently.

Many historical scholars disagree with Finnis and George's interpretations of common law. In The Common Law Inside the Female Body, Anita Bernstein argues that common law actually supports abortion, because of the principles of self-defense against trespassing or intrusion—or what is called a negative right. She argues that even if we give fetuses personhood rights, women have personhood rights and therefore have the right to terminate a trespassing pregnancy. A prominent historical scholar, Villanova University law professor Joseph Dellapenna, agrees with Finnis and George about common law outlawing abortion but he argues that such laws were more concerned with penalizing infanticide rather than protecting unborn life. Additionally, Dellapenna doesn't support using his historical legal arguments to outlaw abortion. Carla Spivack, who strongly disagrees with Dellapenna, and therefore Finnis and George, suggests that these interpretations of common law misunderstand the meaning of "abortion" in the historical context. She also points out that early common law criminal cases were often more like tort law in that individuals had to bring their own cases. This is relevant because it means early abortion cases resulted from women bringing cases against men who caused a lost pregnancy through an assault, not as a result of women performing abortions on themselves.

Part of me wants to go through the brief to discredit every individual claim, but I'd also like to keep my blood pressure from skyrocketing. Before I end, it must be noted that every historical citation provided in the brief was written by men. The only men discussed who likely even had any familiarity with the practice of abortion were American doctors in the mid-19th century who likely condemned abortion because they had an agenda to discredit midwives and medicalize obstetrics and gynecology. There's very little evidence that the writers of the 14th Amendment considered fetuses or abortion or pregnancy, or really even women at all, when writing the relevant language. And honestly, even if they did, I think we can all agree that male politicians from 1868 should not be determining the healthcare choices of pregnant people today.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

The legal system often leaves survivors of abuse with only one viable option

A common refrain in attacking women who have accused men of sexual assault (especially rich men) is that they are just looking to bring a civil suit and get a payday.

This accusation gets worse if these women so much as breathe in the direction of legal representation. Unfortunately, civil litigation is often one of the only ways for victims of gender-based violence (sexual assault, domestic violence, etc.) to get any kind of public acknowledgment, or redress, considering the abysmal statistics on convictions and jail time. Rather than judging the civil litigation route, we should be encouraging people to seek acknowledgment and personal justice in any way they see fit. And if that method comes with some money at the end for victims, so much the better.

Many victims report an experience of retraumatization and minimization by police when they report sexual assault. Police commonly mock, harass, dismiss and belittle accusations out of an assumption that women aren't telling the truth and a system of rape culture that downplays sexual assault entirely. Our adversarial system is tough on survivors in the best of circumstances. It was built as a structure that supported rape culture. But when one adds the sexism and racism pervasive in policing reporting sexual assault or domestic violence can be almost impossible for many victims.

Even when victims bring cases and make it through police questioning, the statistics on successful sexual assault prosecutions are dismal. In Manhattan, in 2019 prosecutors dropped 49 percent of sexual assault cases brought to their offices (an increase in dropped cases from 2017). Perhaps one reason prosecutors drop so many sexual assault cases is that they are one of the most difficult violent crimes to get a conviction for. That same year, in Manhattan, the conviction rate for sexual assault was 44 percent compared to 79 percent for first-degree murder. Nationwide, less than 1 percent of rapes and attempted rapes lead to felony convictions and less than 3 percent of rapists ever spend a day in jail (pre- or post-conviction). We shouldn't accept the low conviction rate as a justification to not bring charges. It's up to police and prosecutors to believe victims and overcome the challenges if a victim bravely comes forward.

When a man is finally brought to justice, we often ask why the women didn't come forward sooner and we judge the reliance on whisper networks for not doing enough to protect people from the abuser. Considering the retraumatizing treatment of victims, and the dismal success rates, how can we blame women for not coming forward? Until we put serious effort into reforming the criminal justice system's treatment of sexual assault cases and other gender-based violence, we cannot expect survivors to take on the risk and responsibility of coming forward to protect others without public support. One possible path forward is restorative justice, which could provide accountability without retraumatization. This option is appealing, especially for those who knew their abuser. Unfortunately, this option is not available in many jurisdictions and needs more logistical support than is currently in place.

Until the criminal justice system improves, I suggest we stop looking down on women bringing civil suits against rapists and abusers. Civil litigation has a lower bar of evidence for judgment in favor of the plaintiff than criminal court. The standard in civil court is a "preponderance of evidence" instead of "beyond a reasonable doubt." While the result from a civil trial obviously isn't a criminal conviction, a verdict that favors the plaintiff (accuser) would be a very public acknowledgment of their experience and could bring public accountability as well as protection for others (a civil verdict is a lot louder than a whisper network). Additionally, depositions and testimony from civil suits are a legal record that can be subpoenaed for jobs, other lawsuits or even criminal charges in the future (assuming the prosecutor doesn't make a deal with the perpetrator, like in the Bill Cosby case). While the system is still adversarial, a victim isn't reliant on police and prosecutors to decide if she's credible. Instead, she hires a personal advocate to protect her interests and file the case (this also makes this option too expensive for many victims, though). Also honestly, why shouldn't we support survivors seeking financial redress after a traumatic assault?

This week, New York City council members Carlina Rivera and Selvena Brooks-Powers introduced a bill to amend the existing Gender-Motivated Violence Act with a two-year window for revived civil litigation. Soon after the provision in the Violence Against Women Act to grant survivors of domestic violence and sexual assault the power to bring federal lawsuits was struck down in United States v. Morrison, New York City passed the Gender-Motivated Violence Act to allow victims to sue for damages.

The legislation was passed with a seven-year statute of limitations. Rivera and Brooks-Powers introduced a bill with a two-year "lookback window" to give victims more time to bring suits. Many victims need time to process their trauma and statutes of limitations can often make getting justice or public acknowledgment difficult. Many states are changing their statute of limitations with regard to rape and childhood sexual assault as a response to the abuse scandals from the Catholic church.

The proposed amended New York City bill aims to provide redress for survivors coming forward as a result of the cultural moment of #MeToo who are currently shut out as a result of the statute of limitations. The council members particularly had victims of Dr. Robert Hadden in mind. Hadden abused hundreds of women while working as a gynecologist and was granted a sweetheart deal by Manhattan District Attorney Cy Vance, which included zero jail time. The amended legislation would allow his victims to bring suit and hopefully have a day in court. In a press release, Rivera said, "For too long New Yorkers who survive instances of gender-motivated violence have been shut out of opportunities to pursue civil actions against their assaulters. Brooks-Powers said, "All survivors deserve to have their voices heard—on their own terms—and by adding a lookback window to the [Gender-Motivated Violence Act], countless others will finally be able to come forward with their stories."

For many shut out of the criminal justice system, civil litigation can be a powerful tool for public accountability, acknowledgement and a day in court on a victim's own terms. Let's stop judging women for seeking financial redress and instead support survivors of domestic violence and sexual assault for coming forward in whatever way possible. A criminal courtroom is not the only place to support their voices.

Mia Brett, PhD, is a legal historian who writes about the construction of race and gender in American history. She lives with her dog Tchotchke. You can find her tweeting @queenmab87.

A historian explains the key mistakes Texas Republicans are making in their new education bills

Education bills are being passed around the country to protect children from the "evil" critical race theory and 1619 Project. They might make white children feel bad. Forget that those railing against these academic efforts rarely understand them or their purpose correctly, or that sexist and racist education has been making students feel bad for generations. The latest bill to gain attention is a Texas Senate bill passed in response to a House bill, set to become law in September, that included a bunch of conservative ahistorical requirements, but also had too many women and marginalized groups on the required list. While claiming to fight indoctrination, these bills miss historically accurate opportunities to paint the United States in a positive light, because they're so worried kids might learn about white supremacy in the process.

The first mistake these bills make is introducing "morality" into an analytical historical education. Morality is usually a personal or religious judgment that can be culturally dependent. It's not useful for analyzing history. Bigotry, violence, discrimination, white supremacy and harm impact are concepts we should be considering. Both bills require students be taught "the fundamental moral, political and intellectual foundations of the American experiment in self-government," and prohibit teaching that "an individual's moral character, standing,or worth is necessarily determined by the individual's race or sex." However, only the House bill includes a requirement "that the history of white supremacy, including but not limited to the institution of slavery, the eugenics movement, and the Ku Klux Klan, and the ways in which it is morally wrong." Both bills mandate that teachers don't teach that "with respect to their relationship to American values, slavery and racism are anything other than deviations from, betrayals of, or failures to live up to, the authentic founding principles of the United States, which include liberty and equality."

This last statement included in both is one of the most problematic requirements of these educational mandates as it forces teachers to elide important aspects of America's history and ultimately participate in nationalistic propaganda. We know that the first African slaves arrived in 1619 (don't worry I didn't cite the 1619 Project), only 12 years after Jamestown, Virginia, was founded. We know the first laws "racializing" slavery and making it an inheritable state were passed in Virginia in 1662.

At the time of the Declaration of Independence, slavery was legal and existed in all 13 colonies. The first gradual abolition law was passed in 1780 in Pennsylvania with all Northern states following until New Jersey passed the last one in 1804. Since most Northern states passed graduation emancipation acts, meaning enslaved people would be freed once they reached a certain age, slavery existed in many Northern states until the Thirteenth Amendment in 1865. Slavery was also inscribed in the Constitution with the Three Fifths Compromise, that enslaved peoples would be counted as three-fifths of a person for census purposes and representative apportionment.

There were also federal laws that supported the rights of slave owners and Southern state rights like the Fugitive Slave law of 1793, made stronger by Prigg v. Pennsylvania, and the Fugitive Slave Act of 1850 which required those living in free states to participate in catching fugitive slaves. It's hard to argue that an institution with this level of federal support was a deviation from the country's values at the time.

The more conservative Texas senate bill is particularly puzzling in that it wants teachers to tell children slavery was a deviation from America's values, but doesn't want the students to learn that slavery and the Ku Klux Klan are "morally" wrong. Isn't that kind of a mixed message? At least the House bill pays lip service to teaching that American values actually condemn racism. The hesitancy to condemn the Klan is a real missed opportunity as well, because it's one of the only times conservatives actually have examples of the United States fighting violent racism.

Historically, the federal government has not been swift in its actions to tamp down racist institutions, with the exception of the first Klan. Initially, the first KKK formed in the wake of the Civil War during Reconstruction in 1865. Klan activities were violent, racist and targeted against Republican Reconstruction efforts. As a result, Union troops stationed in the South during Reconstruction worked hard at combating the violence. President Grant signed the Enforcement Act of 1870 and the Civil Rights Act of 1871 to enforce civil rights provisions and combat the Klan. Grant eventually suspended habeas corpus and invoked the Insurrection Act of 1807 to apprehend Klan members, many of whom were incarcerated and fined. A grand jury named the Klan as a "terrorist organization" in 1870. By 1872, the first Klan had mostly disbanded as a result of the government's willingness to use troops and enforce legal action.1

I'm not in the habit of teaching American history through a lens of proving our country's morality and commitment to equality, but if you were, I can't really think of a better example than the federal government's response to the first KKK. Of course, to use this example you would have to want to condemn the Klan and white supremacy.

While I appreciate that the initial Texas House bill includes mandating teaching Martin Luther King's "I Have a Dream Speech," Frederick Douglass, the Chicano Movement, and Women's Suffrage (and the willingness to condemn the Klan and white supremacy of course), the biggest problems with these bills exist in both of them.

History should not be taught through a moral lens or as a tool of nationalistic propaganda. Bigotry and discrimination should not be taught as if both sides are valid (oh yeah, another provision in both bills is that teachers can't give deference to one perspective over another). We can teach aspirational possibilities of the founding documents without ignoring that slavery was imbedded in the fabric of the nation. In fact, as Nikole Hannah-Jones explains in the 1619 Project, Black Americans have been at the forefront of pushing the United States to live up to its promised ideals.

Mia Brett, PhD, is a legal historian who writes about the construction of race and gender in American history. She lives with her dog Tchotchke. You can find her tweeting @queenmab87.

Texas creates a market for abortion vigilantism

So you know how we often tell anti-choicers that our abortions are none of their business? Well, unfortunately, Texas just passed a law (HB1515/SB8) to make all abortions after heartbeat detection (about six weeks) literally everyone's business.

Usually (as in almost always) enforcement is the state's job but, according to this new ban, enforcement will only be the purview of regular citizens. It doesn't expect people to barge into procedure rooms and engage in a citizen's arrest, but it instead provides a mechanism for suing abortion providers. If individuals can prove the abortion provider performed an illegal abortion, they will be awarded $10,000 per illegal abortion proven in civil court. Yes, this law is really as bonkers as it sounds. It's so bonkers that the following paragraphs will mostly be about proving just how ridiculous this law is.

A new abortion law is the first law in the nation to place the entire mechanism of enforcement in the hands of private citizens.

First, six week abortion bans (and really all pre-viability bans) are unconstitutional. We know they're unconstitutional, because they keep being struck down, and we have language from multiple United States Supreme Court cases telling us they're unconstitutional (none has yet been overturned). Roe v. Wade is still law and it recognizes a constitutional right to abortion until fetal viability. Planned Parenthood v. Casey is still law. It created the "undue burden" standard for abortion restrictions.

A pre-viability abortion restriction cannot create an "undue burden" to accessing an abortion. Whole Women's Health is still law (though the Supreme Court has accepted a similar case this term suggesting a revisit) and it struck down targeted abortion restrictions that created an undue burden to accessing an abortion. More than that, the court held that determining the undue burden of a restriction was the purview of the courts, not the legislatures. Six-week abortion bans aren't just pre-viability bans. They would effectively ban all abortions since pregnant people often don't know they're pregnant at six weeks. Sixteen states have attempted to fully ban abortions before viability (usually around 23 weeks) and have been stopped by a federal court. Texas knows that six-week abortion bans have pretty universally been overturned by federal courts, which is why the state is trying a new approach with this latest law.

Texas' new law is the first in the nation to place the entire mechanism of enforcement in the hands of private citizens. The other unique aspect of this law is that people can sue without proving damage. People who were not personally harmed by the abortion, and were not a party to the "crime" in any way, somehow still have standing to not only sue in civil court but also to recover damages to the tune of $10,000.

Financial settlements in civil court are supposed to provide redress for actual harm done to a person so how does the awarding of money when you weren't a party to an action at all make any sense? You're right! It doesn't! This award is more like a bounty paid to someone for recovering a criminal or a reward for supplying useful information to authorities. Except in both those cases, state law enforcement officials are involved and there's no legal cause of action where a person claims to have standing to sue based on someone else's private business. Last month, the Supreme Court limited the scope of a class-action suit by ruling that only people who had suffered "concrete harm" had a right to sue TransUnion for incorrectly tying people to terrorist organizations through their credit reports. One would hope the court would agree that private citizens don't suffer "concrete harm" by strangers having an abortion. But we all have reason to be scared about any abortion case heading to the current court.

Texas's Travis County Attorney Delia Garza outlined a scenario in which a rapist could profit off his crime by suing the doctor who performed an abortion on his victim.

So why would Texas go out on such a weird legal limb for this law? Legislators are hoping that by removing all state actors from enforcement of the law they can avoid constitutional challenges and stay out of federal court. The legislative director for Texas Right to Life admitted this himself when he said "this was not working in federal court, so let's try a different route." As I said, Texas knows six-week abortion bans have been pretty universally struck down by federal courts considering constitutional questions, so with this new law they're hoping to keep the suits in state courts that don't take up constitutional questions. This makes the suits much more difficult to bring and means the suits carry with them more risk. There's no telling what each individual judge will decide so even if one judge refuses to award damages because the law is blatantly ridiculous another could uphold the law and force individuals to pay thousands and thousands of dollars for performing abortions. Additionally without a clear path for legal challenges many abortion providers won't try to challenge the law and will instead just stop performing abortions entirely.

The financial motivation also provides a high incentive to interfere in other people's lives and drag people into court. Consider the mechanisms for abuse. Even if a woman did not have an illegal abortion, her rapist or abusive spouse could drag her and her doctor into court and force her to disclose medical records and personal information. Travis County Attorney Delia Garza outlined a scenario in which a rapist could profit off his crime by suing the doctor who performed an abortion on his victim. Since the law includes those who "aided" an illegal abortion in being subject to a suit, it also has the added effect of possibly preventing pregnant people from even seeking counsel on abortion. A spiritual leader, therapist, friend or even a cab driver (if they drove the person to the abortion facility) could be subject to one of these suits.

This new Texas law is a transparent political ploy to enact an abortion ban without fear of federal challenge. Abortion providers, abortion funds, clergy and other groups have filed a lawsuit in the US District Court for the Western District of Texas in the hopes they can stop the law before it takes effect September 1. Since it uses a different mechanism for enforcement, the lawsuit challenging it had to include every judge and clerk who could have jurisdiction in enforcing the law in civil court. Unfortunately though we know the law is currently unconstitutional, it's unclear if the procedural change in the law could protect it from the district court judge stopping its effect.

While we're waiting to hear about this lawsuit, please make sure to support local abortion funds in Texas like the Frontera Fund, which provides assistance in the Rio Grande Valley, and The Afiya Center, which is a larger reproductive justice organization for Black women and girls that includes assistance for abortion access.

—Mia Brett

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Newly found unmarked graves for Native children are a dark reminder of an ongoing legal battle

This past month hundreds of unmarked graves of Native children have been found at two separate residential schools in Canada. Unfortunately, the United States has its own history with residential schools and removal of Native children, amounting to cultural genocide. These practices supported weakening the Native population and tribal sovereignty to serve US interests of stealing land from indigenous tribes. The discovery of these graves are a cruel reminder of the tragic treatment of Native-American children, which should remind us of the importance of the Indian Child Welfare Act, or ICWA, which is currently going through legal challenges.

In North America, missionaries often imposed religious education on Indigenous tribes in order to "civilize" Native people and enforce assimilation. One of the first laws passed in the United States to accomplish these goals was the Civilization Fund Act passed in 1819. The act encouraged and funded activities and education carried out by "benevolent societies" or religious organizations in order to "civilize" Native Americans. Not only did this act amount to forced cultural erasure, but it also supported the federal government funding religious groups and Christian education.

This act set the stage for the formation of federally supported residential Indian schools after the Bureau of Indian Affairs was created in 1824. In 1891, Congress passed a "compulsory attendance" law for residential schools. While the law was not strictly enforced, it did enable troops to come onto a reservation and forcibly take children away to enroll them in one of the boarding schools. The Commissioner of Indian Affairs was also authorized to use coercive practices, such as withholding rations, in order to force parents to send their children to the residential schools.

When Hopi parents resisted the removal of children in 1894, troops not only rounded up 104 kids but also arrested 19 Hopi elders and sent them to Alcatraz for almost a year as punishment for resisting. In 1898, Congress passed another law that made attendance at school for Indian children mandatory, something that did not exist in every state for non-Indian children until 1912. By 1902, there were 25 residential schools off reservations in 15 states or territories. These amounted to forced assimilation and cultural genocide in their practices, which included requiring haircuts, uniforms, Christian religious services, and denial of indigenous languages and customs. Physical and sexual abuse were rampant and ignored. Enrollment grew throughout the 20th century, reaching a height of 350 residential schools by the 1970s.

Residential schools were not the only method of Indian child-removal and cultural erasure. From 1958 to the early 1970s, the Indian Adoption Project removed thousands of Native kids from reservations and placed them in Christian homes. Child-welfare groups removed children from native homes for minor issues that never would have justified removal from white Christian homes. Minor hospital stays or even traditional religious practices were enough to justify removing native children from their families and tribes. Eighty-seven percent of Native children removed from their homes in this period were placed with non-Native families. As a result of residential schools and adoption, between 25-35 percent of Native children were removed from their homes.

In response to the disproportionately high rate of Indian child removal, Congress passed the Indian Child Welfare Act in 1978. ICWA gives Native American tribes exclusive jurisdiction over children who reside on an Indian reservation and presumptive jurisdiction over the foster care placement of Native children who do not live on reservations. ICWA prioritizes familial, tribal and cultural connection when considering tribal placement and requires active efforts to keep children with their families or tribes. While ICWA has helped stem the extreme removal of children, the lack of federal oversight has allowed noncompliance. Native parents are four times as likely to have their children removed and placed in foster care than white parents.

While many in child welfare consider ICWA the "gold standard" in child welfare policy, it has faced, and continues to face, legal challenges. In 2013 ICWA reached the United States Supreme Court with Adoptive Couple v. Baby Girl. In it, a non-Native mother put her baby up for adoption after the Native father expressed interest in terminating his parental rights. However, after learning of the baby's adoption by a non-Native couple, the father sued under ICWA. The Court found that since the father was noncustodial, he did not necessarily have rights to sue under ICWA. While the decision ruled against the Native father, it did not overrule ICWA as a law. Unfortunately, it did inspire a number of legal challenges to the law by special interest groups as a result of Justice Alito's opinion, which analyzed the baby's connection to the Cherokee tribe through race rather than citizenship or political identity.

These challenges mostly failed until a coordinated attempt by the Goldwater Institute using an Equal Protection argument to challenge ICWA. The institute claims that ICWA is a race-based law that treats Native children differently from non-Native children based on their race. Claims that Indian law conflicts with the Equal Protection Clause date back to the passage of the Fourteenth Amendment. If successful could have far reaching implications for tribal sovereignty beyond ICWA.

In Morton v. Mancari in 1974, the Supreme Court ruled that a preference for Indians did not violate the Equal Protection Clause of the 14th Amendment because such a preference was intended to correct discrimination, not cause it. The court argued that a preference for hiring Indians in governmental positions in the Bureau of Indian affairs gave "Indians a greater participation in their own self-government; to further the Government's trust obligation toward the Indian tribes; and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life."

Additionally ICWA, and most Indian law, is based on tribal citizenship and sees Native American identity as a political one, not a racial one. Rebecca Nagle, citizen of the Cherokee Nation, has explained to me that, "Anything that feeds this argument that Native identity is based on racial biology, rather than a political status as citizens of tribes, feeds this far-right attack on our tribes." She emphasized that Native Americans aren't a homogeneous group but instead tribes are separate sovereign nations.

In 2018, a federal district court in Texas struck down portions of ICWA in Brackeen v. Zinke. Judge Reed O'Connor sided with conservative arguments that ICWA violates the Equal Protection Clause and categorizes children by race, not eligibility for membership in a tribe. After initially overruling O'Connor, the Fifth Circuit agreed to hear the case, resulting in a mixed decision released in April 2021 upholding the law but overruling certain provisions. The Fifth Circuit found that the higher standard of requiring "active" versus "reasonable" efforts be made to keep the child with family to be unconstitutional as well as the requirement that child welfare agencies provide a "qualified expert witness" to justify placing a Native American child in foster care.

While this recent opinion is mixed, it does not seem to justify the Equal Protection challenge or the claims that ICWA is a race-based law. Unfortunately if the case is further challenged and makes it to the Supreme Court, it's possible the entire law will be overturned and Native children will once again have no protection from removal.

The truth about Bill Cosby, the law, and the legacy of rape in America

Serial rapist Bill Cosby has been released from prison. His 2018 conviction for the sexual assault of Andrea Constand has been overturned. While there are legitimate legal reasons for the decision, his release certainly is not justice. It's hard, however, not to feel that the biggest tragedy is that despite the short jail time, three years, Cosby spent more time in prison than 97 percent of rapists who never spend a day behind bars. Cosby's release does not mean he did not rape up to 60 women. It does not mean Constand was not telling the truth. His release shows us while due process must be the standard for jail time, it absolutely cannot be the standard for believing women.

The unfortunate reality is releasing Cosby was probably the right decision legally. In 2005, the then-District Attorney Bruce Castor made an "unconditional promise" to not charge Cosby in the assault of Andrea Constand, which led Cosby to give depositions in a civil case. Cosby's testimony in that civil case, his admittance that he drugged women to have sex with them, was then used in his criminal trial. The Pennsylvania Supreme Court ruled this violated Cosby's due process rights. I think Cosby belongs in jail. I believe his accusers. Yet under current law, it was the only decision the court could have made. That doesn't mean justice was served. Castor denied justice to Andrea Constand as soon as he made the decision for her to give up a criminal prosecution in favor of Cosby's depositions in a civil matter.

Rape culture and patriarchy are embedded in our criminal justice system. Historically, it has been almost impossible for women to get justice after a sexual assault. In the British North American colonies, rape was illegal but rarely prosecuted and the statute defined rape as requiring forceful carnal knowledge (defined as penetration) against a woman who was not a man's wife (martial rape did not exist as a legal cause until the late 20th century). Additionally, rape was usually a legal issue through the lens of male property. If an unmarried woman were raped, that property was her fathers. If a married woman were raped her husband's property was violated. Age of consent laws also made prosecuting rape difficult, as it was not until the late 19th century that states began to raise the age of consent from 10 to 12 to 14 to 16.

Until the 1970s, rape charges usually required force, multiple assailants or an attack by a man with absolutely no prior relationship with the victim. This definition excludes most rapes, which are committed by someone the victim knows. Because of these legal difficulties, the more common sexual assault charge in the 19th century was seduction. A seduction charge was warranted if a man obtained a woman's sexual consent through the promise of marriage. In these instances, a woman had to be "virtuous" (a virgin), but it was not required that force be proven or that the man be a stranger. Case law in the 19th century made a woman's "previous chaste character" a requirement to bring a charge of seduction and allowed the defendant to provide evidence of "specific acts of lewdness" to disprove a woman's chastity at trial. Though seduction was a more common charge, many of the women described assaults that included more violence or coercion than a simple promise of marriage. Men could escape a charge of seduction by marrying their victims, which was the ultimate result in many of these cases.

Rape charges were even more difficult for women of color who were often assumed to be promiscuous. Enslaved women couldn't legally be raped and interracial sex was more regulated by law than rape of Black women. The entire slave system supported the rape of enslaved women, as it caused pregnancy and ultimately produced more slaves. Furthermore, an enslaved woman defying her master's wishes, whatever they may have been, was a transgression unto itself. Rather than charging slave owners for rape, enslaved women were charged for resisting. In State of Missouri v. Celia, a slave, Celia was charged with murder for killing her owner to stop his four-year-long sexual assault on her. After slavery ended, Black women didn't have much more legal protection from sexual assault. While they technically were now included in the law, it wasn't until 1959 that white defendants were convicted of raping a Black woman in the South when Betty Jean Owens testified against the men who raped her.

Historically, the requirement to prove force and the distrust of the victim's statement made evidence in rape trials almost impossible to gather. A victim would also have to prove her own chastity and evidence of "lewdness" could be admitted to challenge her accusation of rape. Trial courts would rely on medical evidence by doctors to determine both "force" and "rape," but that meant medical understandings of rape and gender, as well as the personal doctor's opinions, heavily influenced rape convictions. Doctors not only gave testimony about evidence of force, such as marks on the body, but also evidence of a woman's resistance. To prove rape, a woman had to not only resist the assault, but resist it to her "utmost resistance." It took until the late 19th century for "force" to be interpreted as possibly including threats of violence. Adding even more confusion, appellate courts often distrusted the medical evidence that had been used to convict a man of rape, challenging what few convictions happened.

Thanks to activism by feminists, rape laws began to change in the 1970s to consider non-violent rape, marital rape, date rape and requirements of active consent. This period saw the passage of "rape shield laws," which protected a victim's identity and made prior sexual experience inadmissible. Before this change in the law, evidence of irrelevant promiscuity could be used to impugn a victim's character and "resistance" to rape. Unfortunately, these legal changes have not successfully changed the cultural understanding of rape or the legal assumptions present in rape trials. Women are often still expected to prove they did not "ask for it." We too often do not consider witness testimony as reliable and instead start from a position of assuming women are lying.

While the legal principle of "innocent until proven guilty" must continue to be applied to rapists in a court of law, that should not be the standard in the court of public opinion. Due process of law is necessary to deprive a man accused of sexual assault of his freedom. But why is it necessary before we believe women? Believing a victim of sexual assault without due process of law does nothing except deprive the accused of our good opinion. As long as the legal system remains biased against victims of sexual assault, we must separate legal standards of guilt from support and believing women.

I'm a scholar of critical race theory — here's the reality about it behind the conservative moral panic

Critical race theory (CRT) is the current conservative media boogeyman spreading moral panic about poor white people being confronted with the history of racism in the United States. Claims about critical race theory range from plausible but incorrect (it's about white privilege and white people's racism) to outlandish and bizarre (it supports a white genocide and confiscating all white people's property). The truth of critical race theory is that it's a socio-legal framework for analyzing the disparate impact of policies on marginalized communities, most often Black people.

OK, but what does that mean? Since CRT was an academic methodology taught in law schools and advanced college courses until recently, those who truly understand CRT often speak in academic language that can be difficult to understand. However, unlike a lot of academic methodologies, CRT has clear and practical real-world applications. Due to its name and origin, people often believe it's an overly theoretical study without concrete evidence. In reality, the scholarship in CRT is often based on the study of statistics, laws and legal cases (about as concrete as you can get).

Berkeley Law Professor Khiara Bridges, a scholar of intersectionality and reproductive rights, provided a list of key tenets of critical race theory in her book Critical Race Theory: A Primer. Professor Bridges argues that critical race theory is concerned with Justice (with a capital J) and is not a thought experiment or academic exercise. Her tenets are that CRT acknowledges that race is a social construction, not a biological reality, that racism is a normal embedded feature of American society (not an aberration), a rejection of traditional liberalism's understandings of racism, and a connection between scholarship and people's real lives. While Professor Bridge's list of core tenets restate a lot of earlier CRT scholarship, it is relevant that her book was published in 2018 and continues to agree with the originators of CRT, such as Derrick Bell and Kimberle Crenshaw. Often, critics of CRT claim the origins are reasonable but the current state is what is problematic. As a newly minted CRT PhD, my scholarship remains loyal to the origins and agrees with Professor Bridge's core tenets.

So what do those core tenets mean practically? First, race has no scientific basis but is instead a social construction based on arbitrarily differentiating between different groups of people. According to the American Society of Human Genetics, "The science of genetics demonstrates that humans cannot be divided into biologically distinct subcategories." However, while race is social and arbitrary, the effects of racism are very real. Rather than essentializing different groups of people based on race, critical race theory challenges essentializing by examining societal reasons for disparate impacts on different races (don't worry we'll come back to this). To say racism is a normal embedded feature of American society, critical race theory is arguing for systemic, rather than individual, causes of racism. It is not concerned with individual instances of racism but instead with large societal impact.

The tenet about liberalism is a little more complicated. Critical race theory originated in the 1970s and gained popularity, among academics, in the 1980s. This period was a response to the work of the civil rights movement that ended segregation and resulted in important legislation like the Voting Rights and Civil Rights Acts. After this work, racialized language was removed from law which ended de jure (but not de facto) segregation. Laws could no longer differentiate based on race, which had been justified until this period as treating both races the same, "separate but equal."

Now laws could not use any explicitly racialized language and instead had to be "facially neutral." CRT scholars came out of a period during which racism was still having a big impact and laws were still discriminatory despite their "facially neutral" status. Therefore CRT sought to address the disparate impact of facially neutral laws, which challenged the traditional liberalism notions of "colorblindness" and legal "equality." CRT showed the need for "equity." The notion of equality seeks to treat everyone equally. The notion of equity suggests that equal treatment is not sufficient if people do not start out on equal footing with equal opportunities. So when CRT scholars say they are challenging traditional liberalism they are not advocating for bringing down democracy. They are just showing that equal treatment is insufficient.

So how is CRT connected to real-world examples? It's so connected that the entire concept of intersectionality—that a person's social and political identities can combine to create different types of discrimination—originated as a tool for Kimberle Crenshaw to argue legal cases that dealt with both racial and sex discrimination, so a single issue analysis was insufficient. In her 1989 paper, "Demarginalizing the Intersection of Race and Sex," Crenshaw discussed three cases in which Black women faced both race and sex discrimination, not one or the other. Crenshaw argued against judges who thought creating a separate class of Black women for the purposes of discrimination would be unwieldy, wanting to limit causes of action to either race or sex discrimination. Crenshaw said "Intersectionality was a prism to bring to light dynamics within discrimination law that weren't being appreciated by the courts."

Mandatory minimums are one of the easiest laws to use to illustrate the need for critical race theory. Mandatory minimums refer to mandatory sentencing for crimes. This was a big push of the tough-on-crime laws of the 1970s and 1980s. The classic example is the sentencing for crack vs cocaine. While crack and cocaine are very similar drugs, crack was predominantly used in the Black community while cocaine was more common among white people. Therefore, those arrested for crack were more likely to be Black. Guess which drug had the harsher penalty? This was justified through the claims that crack was more addictive, led to more violent crime and caused the "crack baby" epidemic. It turns out none of that was true and there was no compelling state reason to treat crack and cocaine differently in terms of sentencing.

So without using any racialized language, and with a law applying equally to white and Black people, mandatory minimums managed to target Black people for incarceration at much higher rates than white people. This is a facially neutral discriminatory law. Do mandatory minimums have a racist intent? Probably. But it doesn't matter. The discriminatory impact is enough to show the harm. That is what critical race theory teaches us. In 1995, Derrick Bell famously asked "Who's Afraid of Critical Race Theory," but I hope after reading this you see critical race theory isn't scary at all.

How the story of Britney Spears reveals the dark and enduring legacy of American eugenics

Britney Spears has been under a conservatorship for 13 years. After her 2008 mental health crisis, Spears' father, Jamie Spears, was put in control of her persona and financial arrangements, though last year a co-conservator has been placed in control of the financial matters along with her father. While Spears seems to have pushed privately for the conservatorship end, or at least for her father to be removed from control, since 2014, Spears made a public statement yesterday for the first time. There can be no question that Spears wants out of her conservatorship after saying, "I truly believe this conservatorship is abusive. I don't feel like I can live a full life."

Perhaps the most chilling part of the pop singer's court statement was that she has an IUD her conservator won't let her remove. While not permanent birth control, the IUD has the effect of forced sterilization. As Britney Spears is under conservatorship based on claims about her mental health, her story joins the long history in the United States of prejudice, eugenics and forced sterilization of those with disabilities.

The first eugenics compulsory sterilization law in the United States was passed in 1907 in Indiana. However, the legal justification wasn't clearly upheld until the 1927 Supreme Court case Buck v. Bell in which Oliver Wendell Holmes famously said "Three generations of imbeciles are enough." The case was a purposeful legal challenge of the Virginia 1924 law authorizing compulsory sterilization of the "intellectually disabled."

The superintendent of the Virginia State Colony for Epileptics and Feeble-minded, Albert Sidney Priddy, filed a petition to sterilize 18-year-old Carrie Buck, claiming Buck was a "genetic threat" to society and had a mental age of 9. According to Priddy, Buck's mother had a mental age of 8 and couldn't care for her five children. Buck's adoptive family had her committed to the colony after she became pregnant. They suggested she was feeble-minded and immoral. In 1927, in an 8-1 decision, the Supreme Court upheld the Virginia sterilization law and sustained the petition to sterilize Buck under the justification that she was immoral and feeble-minded.

No matter the facts of the case, no person should be forced to be sterilized. However, the truth of Buck's life makes this decision even more enraging. Rather than becoming pregnant as a result of her own "immorality," Buck actually became pregnant after being raped by the nephew of her adoptive family. They likely had her committed so they wouldn't have to deal with the reality of the situation and there is little evidence of any intellectual deficit. Carrie Buck was committed and sterilized all as a result of being poor and raped. Her lawyer, Irving Whitehead, barely put on a case. He called no witnesses to counter the supposed medical experts and never introduced evidence that she had been raped. In fact, Whitehead was on the board of the Virginia Colony and as a strong supporter of the sterilization law. Carrie Buck was reported to be an avid reader until her death and her daughter, Vivian, was on her school's honor roll.

The opinion of Buck v. Bell ushered in the passage of compulsory sterilization laws all over the country justifying the sterilization of over 60,000 people. Thirty-two states passed compulsory sterilization laws and the numbers reached their height in the 1930s and 40s. While justified on the basis of "feeble-mindedness," criminality and immorality, many of the women who were forcibly sterilized, sometimes without their knowledge, were women of color. While initially white men were the most likely to be sterilized, Black women soon became the most common target with white women as the next most likely victims. In 1942, Skinner v. Oklahoma ruled against a forced sterilization law but the opinion was very narrow. Oklahoma had passed a forced sterilization law in 1935 that targeted "habitual criminals," exempting white-collar criminals. Jack Skinner, a white man convicted four times of robbery, was sentenced to compulsory sterilization under the new law. The Supreme Court ruled the Oklahoma act violated due process. The court cited the fact that the law targeted specific kinds of crimes, excluding crimes like embezzlement, and a concurring opinion pointed to Buck v. Bell as an example when forced sterilization was called for. The decision only touched on forced sterilization as a punitive measure and did not discuss forced sterilization to address those who were mentally ill or disabled. This ruling helped in part to move the focus of compulsory sterilization away from white men.

Compulsory sterilization lessened by the 1960s and most laws were repealed in the 1970s, but it took feminist campaigns and lawsuits to accomplish the progress. A 1974 case, Relf v. Weinberger, exposed widespread coercive sterilization of women by threatening to expose welfare benefits. The judge in the case ultimately ruled that federal funds could not be used for involuntary sterilizations. Alternatively, in 1978 in Madrigal v. Quilligan, a District Court in California ruled that doctors who coercively sterilized Hispanic women who did not speak English had the best interests of their patients in mind. The judge in the case blamed the women for not ensuring they were informed before signing medical forms and their culture for their trauma. Despite the ruling, the case did result in improvements to informed consent in California.

Unfortunately, forced sterilizations continue to this day. Unwanted sterilizations were being performed on women in California prisons until 2010. Additionally, many states continue programs that encourage unwanted sterilizations. These laws often offered an early release from prison or a reduced sentence if a person agreed to get sterilized. While not technically compulsory, these laws are certainly coercive. Just last year a complaint was filed alleging sterilization procedures were being performed on women in ICE custody without their knowledge or consent. Temporary sterilizations, like Britney Spears', are also often used in abusive ways. In Killing the Black Body, Dorothy Roberts discussed the abuse possibilities with contraceptive implants like Norplant and the narratives around pregnancy for Black and impoverished women to manipulate them into using such semi-permanent forms of birth control.

Ultimately reproductive control, whether to have children or not have children, is a central tenet of reproductive justice. Robin Marty and Laurie Bertram Roberts emphasized the use of IUDs as a form of reproductive coercion in their email from Yellowhammer Fund today in support of Britney Spears, but they also noted the importance of their availability for those who do want one.

Unfortunately, many in the disability community still face steep obstacles to accessing reproductive control over their own bodies. On the one hand, laws support restricting the reproductive control of disabled people, while on the other possible disabilities like Down syndrome are used to justify pre-viability abortion bans. Many think forced sterilizations are a thing of the past, but in truth, Buck v. Bell has never been overturned.

If we want true reproductive justice, it must include not only the choice to not have children, but also the agency to have as many children as we want. This fight must center the disability rights movement to ensure that the law respects the agency of all of us and can't use a mental illness as justification to seize our rights.

"There can be no discussion about Britney Spears' fight to end her conservatorship that does not center … disability justice and reproductive justice. Her right to bodily autonomy was attacked because of her mental illness and the need for support should not result in a surrender of rights." —Disability activist Rebecca Cokley

The politics of violence against women

Last week, I wrote about the causal connection between domestic violence and mass shootings, and the urgent need to take domestic violence seriously. While this is true and while domestic violence remains relevant in 60 percent of mass shootings, we should be concerned with domestic violence outside of public safety. Intimate partner violence accounts for 15 percent of all violent crime, but it's often left out of crime debates. Perhaps this is because 85 percent of domestic violence victims are women.

Historically, domestic violence has been ignored or even legally accepted. Until the 19th century, Anglo-American common law allowed wife-beating as long as the husband did not inflict permanent injury on his wife. Domestic violence wasn't illegal in every state until 1920, but it took the feminist movement of the 1970s to get the culture to begin to take it seriously. More often than not, American jurisprudence viewed marital relations as something protected under a right to privacy, which served to ignore violence within a marriage in order to protect "marital harmony."

This view was aided by the decidedly gendered lens used to see domestic violence, often referring to it as "wife-beating," for example. As many laws allowed for male control of the household and marriage, the gendered lens minimized safety. This began to change in the 1970s. After Craig v. Boren in 1976, a case concerning gendered language in a law governing alcohol consumption, sex-based state action became subject to a heightened level of scrutiny under the Equal Protection Clause of the 14th Amendment. This led to the removal of gendered language in criminal codes in favor of phrases like "spousal assault" and "domestic violence." While this effort was supported by advocates at the time, it hurt legal challenges to domestic assault policies because they seem gender neutral, despite 85 percent of victims being women.1

In Thurman v. City of Torrington, domestic violence victim Tracey Thurman sued her local police department in Connecticut for violating her civil rights and failing to protect her from an abusive husband. In 1982, she left her husband, Charles "Buck" Thurman, with their young son. The following eight months involved ongoing verbal abuse, trespassing, stalking and threats of violence from Buck Thurman that were repeatedly ignored by police. In that time, police refused to charge Buck Thurman with criminal trespass after he forcibly entered Tracey Thurman's home to remove their son; charged Buck with disturbing the peace only after he broke Tracey's windshield (but did little to keep Buck away from Tracey); and ignored reported threatening behavior, including five visits to the police station by Tracey.

Tracey Thurman was eventually granted a restraining order. On June 10, 1983, a police officer arrived 25 minutes after Tracey called police to report her husband on her property. The cop sat in his car while he stabbed her over 20 times outside the house. The police officer eventually took the knife away but watched as Buck kicked Tracey in the head multiple times breaking her neck. Buck was not arrested until 40 minutes after police arrived and Tracey was loaded into an ambulance. The suit claimed that Tracey was ignored by the police because she was married to the perpetrator.

The suit's constitutional basis rested on the claim that as a woman and a victim of violence, Tracey Thurman was treated differently than other victims of violence. A federal district court found that "a pattern of affording inadequate protection, or no protection at all, to women who have complained of being abused by their husbands ... is tantamount to an administrative classification used to implement the law in a discriminatory fashion." She was awarded $2.3 million but settled for $1.9 million.

As a response to the Thurman lawsuit, Connecticut passed the "Thurman Law" (aka the Family Violence Prevention and Response Act) in 1986, which required police to make arrests in domestic violence cases, even if the victim doesn't press charges. Outside Connecticut, police departments all over the country were motivated to change their responses to domestic violence to avoid a financially damaging lawsuit.2

In 1994, the passage of the Violence Against Women Act (VAWA) was intended to address the lack of resources available to victims of gender-based violence. However, the inclusion of a civil-rights remedy for the disparate treatment of women victims caused controversy. Title III of the statute treated violence against women as a form of sex discrimination and established a federal civil-rights cause of action for victims of gender-based violence to be able to sue their abusers in federal court. The act was meant to "protect the civil rights of victims of gender-motivated violence and to promote the public safety, health, and activities affecting interstate commerce."3

Its "interstate commerce" clause was necessary to give Congress authority to enact civil-rights protections under the Constitution's Commerce Clause. Unfortunately, this provision was struck down in 2000 in United States v. Morrison. VAWA provided a federal rape shield law, community violence prevention programs, protections for victims evicted due to events related to domestic violence or stalking, funding for victim assistance services, and legal aid for survivors of domestic violence.

Domestic violence is still the leading cause of physical injury to women, more than car accidents and muggings combined, and more than half of female homicide victims are killed as a result of intimate partner violence. About 25 percent of women have experienced severe domestic violence (compared to one in nine men), and a third of women have experienced some sort of physical violence by their intimate partner.

Trans people and women with disabilities are particularly vulnerable to domestic violence. Domestic violence affects women of all races and incomes but Black women experience intimate partner violence at a rate 35 percent higher than that of white women, and about 2.5 times the rate of women of other races. Over half of Indigenous women have experienced physical violence by an intimate partner and Indigenous women face the highest incidents of rape and assault of any ethnic group.

Indigenous women also face an additional legal hurdle for bringing charges, as tribal courts do not have jurisdiction to prosecute non-members. Unlike other gender-based violence, the majority of violence committed against Indigenous women is committed by men outside their ethnic group. The 2013 reauthorization of VAWA included provisions to address violence against Indigenous women but tribal jurisdiction and the crimes included must be expanded. While VAWA was reauthorized multiple times, it has yet to be reauthorized since in 2018. Joe Biden ran on a promise to reauthorize it. House Democrats did so in March. Next time a senator expresses concern for the safety of women in trans-inclusive spaces, remind them that the real danger is intimate partner violence and demand that they vote to reauthorize VAWA.

Mass shootings are making news again — here are the legal loopholes that help them happen

As our country continues to open up, mass shootings are making the news again. On March 16, a man went on a shooting spree against Asian women, killing eight people in Atlanta. On March 22, a man killed 10 people in a grocery store parking lot in Boulder, Colo. On April 15, a man killed nine in a FedEx facility in Indianapolis. On May 9, a man opened fire at a birthday party, killing seven in Colorado Springs. This week, on May 26, a man killed 10 people at a San Jose, Calif., transit center.

And these are the stories that made the news. According to the Gun Violence Archive, which includes gun incidents in which no one dies in their definition of a mass shooting, there have been 232 mass shootings and 15 mass murders since January 1.

What may surprise people is that while we heard about mass shootings less during the covid pandemic, it was actually the deadliest year for gun violence in decades. There were 610 mass shootings and 21 mass murders last year. So why didn't we hear them? Because most mass shootings are domestic violence incidents occurring in the home.

According to one study that defines a mass shooting as an incident in which four or more people are shot and killed, excluding the shooter, 61 percent between 2009-2018 occurred entirely in the home. Another 10 percent occurred in a home and in public. The majority of children and teens who die as a result of mass shootings don't die in school; 72 percent died in a mass shooting involving domestic violence. At least 54 percent of mass shootings included at least one intimate partner or family member as a victim. The connection between mass shootings and domestic violence gets stronger when you include men who have histories of domestic violence and become mass shooters. An analysis of 749 mass shootings between 2014 and 2019 found almost 60 percent of mass shooters either were committing domestic violence or had a history of domestic violence before the mass shooting. An ex-girlfriend of the San Jose shooter who killed 10 people this week accused him of rape and intimate partner violence.

While I could not find a statistic on the percentage of gun deaths each year that are domestic violence related, we do know that a gun in the home makes it five times more likely a domestic violence situation will be deadly and domestic violence assaults involving a gun are 12 times more likely to result in death than assaults with other weapons or bodily force. Women in the United States are 21 times more likely to be killed by a gun than in other high-income countries and nearly half of all women homicide victims are killed as a result of intimate partner violence.

While domestic violence is a deadly threat to women in a country with so much access to firearms, it is mostly discussed in relation to mass shootings when the shooter also kills people outside the home. Much of the increase in gun deaths in 2020 is a result of domestic violence and people being stuck in the home. However, without the spectacle of the public mass shooting the media mostly ignored gun deaths last year. The narrative about returning to normalcy has also included concern about returning to mass shootings, ignoring the prevalence of domestic violence shootings last year.

In 1997, Congress passed a law, often called "the Lautenberg Amendment," prohibiting anyone convicted of domestic violence from owning a firearm. Unfortunately, loopholes allow a domestic abuser to legally purchase guns. One issue with the law is that it only applies if the abuser has been married, lived with, or had children with his victim. Therefore, those convicted of assaulting a dating partner or a stalking victim can still pass a background check and legally purchase a gun. This has been dubbed "the boyfriend loophole." As of 2018, only 27 states have passed laws to address it.

Many abusers can legally purchase firearms, because their convictions are never entered into the federal database. This must be done manually. State databases don't automatically populate the federal one. This oversight led to the killing of 26 people in a Sutherland Springs, Texas, church in 2017. The shooter, Devin Patrick Kelley, was convicted of domestic abuse in 2012 while in the Air Force. He should have been barred from legally purchasing guns in 2017 but the Air Force said his convictions had not been entered into the National Criminal Information Center database.

There are also gun sales when a background check isn't required. Private sellers are allowed to sell guns without running background checks. This is particularly common at gun shows. If the background check system doesn't immediately make a determination, and three days pass without the FBI continuing to investigate, the gun can be sold in what is called a "default proceed" sale. This is also referred to as the "Charleston loophole" after the Charleston, South Carolina, church shooting.

Improving our societal response to domestic violence and improving our societal commitment to keeping guns away from domestic abusers has the potential to drastically lower gun deaths in this country and limit the number of mass shooters.

Seventy-five percent of mass shooters use a legally purchased gun and, as previously said, 60 percent of mass shooters have a history of domestic violence. Everytown for Gun Safety argues we must strengthen state laws prohibiting domestic abusers from owning guns, improve implementation and enforcement of existing laws, closing the previously mentioned loopholes, improving domestic violence records, requiring gun dealers to notify law enforcement when a convicted abuser attempts to buy a gun, and funding research on domestic violence and gun violence.

I argue we must do all that but we also must take domestic violence as a societal problem more seriously at the first warning sign to ensure domestic abusers get a conviction and are guaranteed to fail a background check.

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