Category Archives: Congress

Anti-Anti Violence Against Women? Why Some GOPers Voted “No” on VAWA.

Todd Panciera, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Todd Panciera, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

By Todd Panciera, Junior Editor

The Senate finally passed the reauthorization[1] of the Violence Against Women Act (VAWA), and some Republicans are taking heat for the delay.  Liberal blog site thinkprogress.org has gone as far as publishing photos of each of the 22 Senate Republicans that opposed the bill, here.Even GOP rising star Senator Marco Rubio (R-Fla.) (who delivered the Party’s response to the State of the Union) appears to be on the short list. But the Whitehouse saysthat reauthorizing VAWA is “more essential than ever.”[2]

The Violence Against Women Act was authored in 1994 by then-Senator Joe Biden.  VAWA represents a non-partisan solution to an obvious problem; we expect Congress to be fundamentally split over issues like healthcare and guns, but not over curbing domestic abuse.  That said, are we really just “rubber-stamping a politically attractive law,” as Christina Villegas suggests?  Villegas, a visiting fellow with the Independent Women’s Forum who is writing her PhD dissertation on VAWA, alleges (here) that VAWA is replete with bloat and waste and has not been credibly proven to reduce violence.  However legitimate their arguments, VAWA’s opponents risk their political caché by fighting legislation that — at least facially — is a comprehensive effort at a time when gender-based violence is getting renewed international attention.[3]Are deal-breaking concerns really being brushed aside by most of Congress so that it can avoid appearing to “wage a war on women?”

VAWA’s Effectiveness

According the Department of Justice, the rate of intimate-partner homicides has been trending downward since the passage of VAWA: the overall rate of occurrence has dropped more than 60% between 1994 and 2010, according to this DOJ Special Report.  Critics like Villegas, however, quickly point to the rest of this report, which notes similar rates of decline in all violent crime.  Further, post-2005 figures indicate that violent crime rates have continued this downward trend.  Compare that to intimate partner violence decline, which has leveled some.  Many, many scholarly works have attempted to compile these numbers into meaningful analysis, attacking or defending VAWA’s basic assumptions, the wisdom of its particular provisions, and even its constitutionality.  To borrow a wry phrase from one critic, VAWA “has proven to be a federal response to the problem of journal topic selection for American law students.”[4]

Congressional Points of Dissent

            Obviously, Congressional beef with VAWA doesn’t encompass the whole of VAWA scholarship.  Given historical precedent,as well as political limitations (namely, that any full scale assault on the idea of VAWA would surely be political suicide), congressional opponents are more likely to focus on a particular area of concern.  Representative of this approach are the comments of Senator Richard Shelby (R-Ala.): “I like the idea [of reauthorization].  There is too much violence against women and children in this country, a lot of it left unanswered.”[5]  Below, I focus on two of the most controversial areas.

I. Tribal Lands Provision

One of the primary points of contention is the amendment that would give tribal courts jurisdiction to prosecute non-Native American men who abuse Native American women on tribal lands.[6] In a position statement, Senator Rubio stated conclusively: “I have concerns regarding the conferring of criminal jurisdiction to some Indian tribal governments over all persons in Indian country, including non-Indians.”  Senator Chuck Grassley (R-Iowa) has been a more vocal opponent, arguing that because on tribal lands Native Americans would necessarily make up a trial court’s jury, such a jury wouldn’t be an accurate cross-section of the community, an essential guarantee of the Sixth Amendment.[7] The concern isn’t only for the rights of alleged abusers, either.  Senator John Cornyn (R-Texas) warns that VAWA could be put in jeopardy if a court were to find a constitutional problem.  Republican supporters have tried to shed light on the constitutionality of this provision, however, noting that jurisdiction is not being removed from courts of the United States, but would be concurrent with the very limited jurisdiction the amendment would confer to tribal courts.  Further, they note that tribal courts are subject to the same constitutional constrictions as other U.S. courts.[8] Republican opponents like Grassley were at least partially successful in modifying the tribal provision to bolster constitutional guarantees, ensuring that the accused may elect to transfer venue to a non-Native court.

II. Immigration Provision

            Opponents claim that the immigration amendment allows illegal aliens to remain in the United States simply by alleging domestic abuse, due to a broadening of the provisions of the Immigration and Nationality Act.  Essentially, VAWA modifies the INA by allowing aliens to obtain visas by “self-petitioning” under certain circumstances.[9]  These so-called “U visas” are given to victims of violent crimes in exchange for cooperation with law enforcement.  Under the current law, 10,000 U visas are given out each year — the immigration provision proposes to expand that number to 15,000, and some Senate opponents see a potential for abuse.  They claim that growing the cap on U visas encourages illegals to make false reports; one critic notes that an immigrant can even apply for a U visa as a “last-ditch Hail-Mary pass to avoid being sent home” after being ordered deported.  On the ground, though, initial skeptics like San Francisco Police officer Tony Flores have noted being surprised by a lack of false reports.  Others have seen more questionable U visa petitions, such as one submitted after a woman’s teenage son slapped her when she told him to get off the computer.  What is most notable, however, is that whether the cap is 10,000 or 15,000, the amendment makes clear that a person must show “substantial harm,” and acceptance of a petition is discretionary.

Ultimately, Congress is getting closer to reauthorizing VAWA after more than a two-year lapse.  Even among its most prominent critics, VAWA generally is recognized as a positive advancement for the protection of domestic violence and sexual assault victims.  Congressional dissenters afford due credit for its role in “reducing the incidence of domestic violence by more than 50 percent, among other successes.”[10] Contrary to one of Villegas’s more superficial concerns, VAWA is still aptly named; studies makes clear that most victims are women,[11] and being so-named does not preclude men from its protections.  Ultimately, like any good bill, its shortcomings are outweighed by positives and after all, as Senator Bob Corker wisely quipped: “Up here, you can’t vote for part of a bill.” The House is expected to vote on the bill as early as next week.[12]

 

 


[1]Here’s a rundown of the salient points, according the Whitehouse: http://www.whitehouse.gov/sites/default/files/docs/vawa_factsheet.pdf.  The full text of the bill (S.47) can be found here: http://thomas.loc.gov/cgi-bin/query/z?c113:S.47:

[2] The Whitehouse adds the claim that the 1994 version of VAWA has caused the incidence of domestic violence to drop more than 50%.

[3] Recently gender-motivated crimes have received much global attention, prodded by recent exposés of India’s “rape crisis”: http://www.cnn.com/2012/12/21/world/asia/india-rape-danger

[4] Christopher James Regan, A Whole Lot of Nothing Going On: The Civil Rights “Remedy” of the Violence Against Women Act, 74 Notre Dame L. Rev. 797 (1999).

[5] Emphasis mine

[6] For an excellent discussion about the merits of this provision, see DJ Harris, Native American Sexual Assault: Amendments to the Violence Against Women’s Act, Ala. Civ. Rights Blog (Sep. 5, 2012), http://alabamacivilrights.wordpress.com/2012/09/05/native-american-sexual-assault-amendments-to-the-violence-against-womens-act/

[7] While not entitled to a jury that mirrors the community as a whole, a criminal defendant is entitled to a jury pool of persons constituting a fair cross-section of the community.  See Taylor v. Louisiana, 419 U.S. 522 (1975).

[8] The Act specifically mentions jury selection in Section 904(f)(1)(H)(3).

[11] According to the report, 4 out of 5 victims of intimate-partner abuse are female.

Drones: Soon Coming To A Sky Near You

The technology used for air traffic control is changing and so is the civilian aviation landscape. Last month,

James Tarbox, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

James Tarbox, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Congress approved a plan that would phase out radar as the means of tracking planes and shifted to a system using GPS-satellite tracking.

Under this plan, the FAA would be required to phase in unmanned drone flights in currently-restricted U.S. airspace.[1] At the present time, the United States military maintains an arsenal of roughly 7,500 remote-controlled drones. With the end of combat operations in Iraq and the scale-back of combat operations in Afghanistan, there will be more drones back in the United States. Under current FAA regulations, remote-controlled drones are not allowed in U.S. airspace without special permission. This restriction is in place because the technology is not compatible with manned aircraft. The FAA is unsure of how the unmanned aircraft will interact with manned aircraft in U.S. cities.[2] To test how to integrate the drone force into the current civilian airspace, the FAA must establish a testing ground by June 30th of this year. The manufacturers of the drone fleet will have to create technology that allows the drones to sense they are flying too close to commercial or other manned aircraft and react accordingly. The FAA has yet to create guidelines as to how the technology needs to be developed and what the technology must contain.[3] Furthermore, there are broader questions as to how military technology used on the battlefield will be implemented back on the home front.

Several organizations have come out against the creation and implementation of these new policies by the FAA. Groups, such as the American Civil Liberties Union, have petitioned the FAA to ensure that the privacy rights of citizens are included in the analysis of allowing drones to be used domestically. The group warns in their petition that drones can easily intrude on the privacy of everyday people, and that this intrusion is a violation of the Fourth Amendment.[4] The ACLU’s petition states that these drones can “track up to 65 different targets across a distance of 65 square miles.” In addition, in the near future, these cameras may soon include facial recognition technology that would make it possible to remotely identify individuals at parks, schools, and political gatherings.”[5] The petition further urges that drones offer the user the ability to survey an area undetected by persons below. The drones can provide constant surveillance that previous technology could not sustain. Additionally, the petition argues that once facial recognition software is available for use on the drones, the FBI and other monitoring agencies could use that same technology against political dissidents. This use would, according to the ACLU, violate the would-be dissident’s First Amendment rights. The petition goes on to urge the FAA to evaluate the available options and conduct a study balancing the public and private interests in drone usage.

According to a recent Rasmussen poll, “that despite a willingness on the part of Americans to see the use of drones by the military in overseas situations, 52% oppose the use of surveillance drones by private entities, police agencies, and government agencies inside the US. Just 30% said they were in favor of the use of drones in the US.”[6] Jay Stanley, of the ACLU’s Speech, Privacy and Technology Project, says, “the FAA should be rightly concerned about ‘the safety effects of filling our skies with flying robots.’”[7] The concerns of these groups can be summed up in an additional quote by Stanley where he stated, “Congress — and to the extent possible, the FAA — need to impose some rules (such as those we proposed in our report) to protect Americans’ privacy from the inevitable invasions that this technology will otherwise lead to. We don’t want to wonder, every time we step out our front door, whether some eye in the sky is watching our every move.’”

Are the fears of the ACLU and other civil rights and watchdog groups well-founded? Will law enforcement in the United States be able to capitalize on this drone technology to decrease the amount of privacy we as Americans enjoy? In a world filled with security cameras and electronic monitoring of our activities such as credit card purchases, how much further can (should) the government go? The ACLU cites facial recognition software as a concern on these drones if used for domestic surveillance. This technology has already been used at large events such as the Super Bowl (since 2001) to target suspected terrorists in the crowd.[8] While it is apparently still in the development stages for use on aircraft, the fact of the matter is that we as Americans already subject ourselves to the use of this technology in some areas of our lives already. Additionally, police helicopters already have the technology to track individuals using infrared sensors. In this day and age, it is nearly impossible to get away from a police helicopter that is equipped with the most up-to-date technology.

Technological developments generally make their way from military use to civilian use, just look to cell phone technology and sport utility vehicles. Why aren’t drones just the next step of technology in a long stream of innovations that have traveled through the military to civilian use cycle? While the ACLU uses a “parade-of-horribles” for their scenario, it does make a valid point. If the police already have the technology to pursue criminals with infrared from a helicopter, why do the police need to be able to track people up to over 65 square miles? If the FAA program is successful in implementing the use of drones, strict limits will have to be put in place. Battlefield technology does not need to be implemented in whole on the home front. There should be certain exceptions allowed for entities such as the Department of Homeland Security and the FBI; however, these exceptions should have to go through the highest levels of authority to be approved.

The FAA has the opportunity to upgrade our air traffic systems to the highest level. The future of shipping could one day be changed because some of these drones can carry such large payloads. While helicopter pilots will not be replaced, there could be fewer deaths from helicopter crashes. While few and far between when compared to the number of helicopters flying every day, there are frequent helicopter and even small aircraft crashes in the United States. If a news crew needs to get a shot of morning traffic, no longer will a helicopter have to take the camera man to the scene. A drone could take off, circle the city, and relay the images of the interstate back to the station to be broadcast. The possibilities for new innovative uses are endless; however, the possibilities for government use against the people are endless, as well, and must be closely monitored to ensure that our right to privacy is not infringed upon by a piece of technology that the eye cannot even see.


 [8] http://www.usatoday.com/news/washington/2007-05-10-facial-recognition-terrorism_N.htm

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Who Should Pay? American Birth Control and The First Amendment

Jared Miller

Jared Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

“I almost threw up,” was a remark by current presidential candidate Rick Santorum given in response to a speech by John Fitzgerald Kennedy, the 35th President of the United States. On September 12, 1960, Kennedy’s speech outlined his opinion on the distinct roles that the church and state should play in America. Kennedy’s speech came in response to skepticism and disdain projected at him because of his Catholic faith. Public counter arguments undermining previous President’s views by presidential hopefuls and political ideologists are not uncommon. It is common for these opposing statements to be made for political gain, political distancing, or simply because of honest disagreements. This is especially true when a political stand has been taken or when a new piece of legislation is proposed. A debate has been ignited and statements such as Santorum’s have been prevalent due to President Obama’s recent birth control policy.

The new policy, which was adopted earlier this month as part of Obama’s health reform law, the Patient Protection and Affordable Care Act of 2010, requires most employers to provide health insurance coverage for women’s contraceptives free of charge. This birth control aspect of the law caused an immediate and swift backlash, especially from a great deal of Catholics. A large percentage of Catholics do not believe in women’s contraception at all and feel the law unjustifiably and unconstitutionally forces their hand.  Many Catholics, especially company owners and others in positions of power, find a problem with the law in that it essentially forces them to insure employees with respect to something they do not personally believe in. Even Vice President Biden, a Catholic, was vocal about the controversy and said the presidential administration needed to reassess this component of the reform law “to make sure that we do not force the Catholic Church to do something that they fundamentally think is inconsistent with their religious beliefs (sic).”

Obama made a “compromise” after national pressure from the Catholic Church and a subsequent reassessment of the reform law. In specific situations the compromise requires the insurance companies to cover the cost of birth control coverage for employees, hence eliminating the employer’s obligation.  The compromise is applicable to religiously affiliated institutions, including “Catholic-run hospitals and universities that oppose artificial contraception.”  The compromise made it so the law does not apply to places of worship, including, churches, synagogues and mosques. The compromise did a service to Obama’s administration by appeasing a faction of the Catholic community and allowed the administration to make strides toward weathering the controversy.

However, the contrasting sides of the argument are stark and the debate with respect to the legality of this birth control policy continues. Naturally, litigation is expected to occur when religious beliefs, new legislation and the rights of a constituency are at stake. Subsequently seven states, two private citizens, two religious nonprofit organizations, and a Catholic school have all joined in on a lawsuit against Obama’s policy. The lawsuit asks a federal judge to rule the law unconstitutional and enjoin the government from enforcing the requirement.

Nevertheless, many Catholic leaders, evangelical groups, Republicans, social conservatives and even a minority of Democrats have rejected this compromise. They argue that this law still “violates religious freedom under the U.S. Constitution and would cause economic hardship for self-insured institutions.” Archbishop Thomas Wenski, who heads the Catholic archdiocese of Miami, says this was a unilateral decision made by Obama administration and the compromise was no more than a “smoke screen” to calm down the controversy. He argues that his problem with the birth control policy is that it forces employees of Catholic charities, hospitals and universities to receive birth control coverage, hence affecting one’s “religious freedom.” When pressed about the idea of shifting the burden to the insurance companies, Wenski acknowledges it, but does not feel it solves the religious liberty problems or is a compromise at all. He points out that self-insured dioceses and charities having to cover their employees would be violating their religious principles. Essentially, Wenski questions the policy considerations when an insurance company is not the insurer.

The question then becomes who is responsible. Wenski and other Catholic Church leaders with similar views believe the employers will eventually be held responsible to cover this gray area in the birth control policy. Additionally, some states and religious groups that are not covered under the religious compromise are suing because they say the policy violates their freedom of conscience and the Religious Freedom Restoration Act (RFRA) of 1993. John Witte, Jonas Robitscher Professor of Law at Emory University, says RFRA requires the federal government to show it has a compelling state interest if it violates the religious freedom of a person or group, and it must show that it used the least restrictive alternative for achieving that state interest. He also says “those two hurdles of the RFRA, I think, would be very hard for this new mandate to pass, when an individual or group brings claim.” Many members of Congress seem to agree.

Senate Republicans recently proposed legislation that would allow employers and insurance companies to opt out of portions of the reform law in which they found morally objectionable. Members of Congress argued the birth control requirement under the reform law violates the First Amendment’s guarantee of religious freedom by “forcing insurers and employers to pay for contraception for workers even if the employers’ faith forbids its use.” The measure was narrowly defeated by Senate Democrats.

Senator Barbara Boxer (D-California) was vocal in her opposition to this Republican-led legislation. Her rationale? The proposal gave insurance companies too much discretion in their dealings with employees and this insurance company opt-out clause could potentially be dangerous. She said Congress has “never had a conscience clause for insurance companies” because the majority of them do not “have any consciences.” She went on to say that this would give insurance companies yet another method to deny coverage for medical treatment, virtually undermining the objectives of the reform law.

It is not uncommon for a policy such as this one to cause disagreements about its constitutionality, however, other factors from a public relations standpoint has contributed to heightening the debate.

Aside from the substantive law, many in the public, church and in governmental capacities do not agree with how the decision to move forward with the policy was handled. Wenski pinpoints the lack of collaboration on the act as one of his biggest contentions. He states, “The White House didn’t consult the bishops.” The U.S. Conference of Catholic Bishops President, Timothy Dolan of New York, expressed his view on the necessity of an open dialogue between the Obama administration and his faction of the Catholic Church, calling the proposed birth control compromise unacceptable. Dolan feels that an acceptable solution can be made if everyone has a seat at the table.

However, the public feelings towards the law are telling a different story despite church leaders’ calls for increased collaboration and the unfavorable characterization it has received from a legal and ethical standpoint. Polling has indicated that the majority of the public favor requiring birth control coverage for employees of religiously affiliated employers. Joint polling by CBS News and The New York Times from February 8th-13th found that 61% support Obama’s birth control policy, while 31% oppose it. Additionally, Thomson-Reuters News has reported that polling of 1,500 adults found that 63% of Americans overall supported the policy, according to the data. It also has to be encouraging to the Obama administration that polling has found that Catholics support the requirement at a similar rate as all Americans. Even the initial compromise of allowing religious institutions to opt out of the birth control policy was met with praise from a faction of Catholics.

The compromise instantly garnered praise and excitement towards the Obama administration from the Catholic Health Association, a substantial association that oversees some 600 Catholic hospitals. The head of this association, Carol Keehan, said that the administration “listened to us and they heard the things that we were most concerned about, and we’re pleased.” She explains that women get the health care they want, the church does not have to pay for or endorse birth control, and everyone wins. This is a feeling attested to by Rev. Thomas Reese, a Jesuit priest at Georgetown University’s Woodstock Theological Center. Reese believes that the religious liberty issue went away when the birth control compromise ensured that religious groups do not have to pay for or recommend birth control coverage. He further rationalizes that “most Catholic women want, and use, birth control.”

The Obama administration hears the debate and is actively defending their decision. When responding questions about the possible legal ramifications of the policy, Secretary of Health and Human Services Kathleen Sebelius stated the administration had their legal department “look at a whole host of legal issues.” To minimize litigation and compromise further with the opposing side, the administration has said they are currently crafting a plan to present to self-insured employers that have religious objections to the policy. Having the majority of America’s support in addition to working towards compromising with self-insured employers has put Obama in a strong political position. If polling is accurate, he is on the winning side of the debate regarding contraception.  This is great news for his political standing, however, the birth control policy has to withstand a barrage of scrutiny to remain effective.

This topic is going to be heavily litigated and both sides have compelling arguments.  However, the Obama compromise is a substantial step in the right direction. It is hard to make an argument that your religious freedom is being violated when you (the employer) are taken out of the equation. What argument can be made if an employer does not have to or is not expected to even discuss birth control with their employees is not readily known. It is hard to see where a violation of rights of potential employers comes from if the burden of insuring is now placed in the hands of the insurance companies.

Furthermore, the argument that Wenski makes that the policy is unconstitutional because “it forces employees of Catholic charities, hospitals and universities to receive birth control coverage” is unlikely to stand up. Simply because the employees have access to this right does not mean they have to use this right. President Obama is not forcing anyone to use the birth control; he is just making it accessible to the individuals that choose to use it. It would most likely be hard to convince the public or a court that a piece of legislation is unconstitutional because it provides employees additional coverage and the decision whether to use is left to their discretion. Nevertheless, there is a valid objection that can be made about self-insured employers. The administration has not rectified the situation and this could be problematic. A religious freedom argument could be made if self-insured religious organizations are asked to pay for something they do not believe in. The President must know this and judging by the initial compromise, it is easy to believe he will come up with a fair solution to please all interested, objective parties.

Sources:

http://www.reuters.com/article/2012/03/01/us-healthcare-contraceptives-poll-idUSTRE8200C320120301

http://www.npr.org/2012/02/10/146710901/catholics-have-mixed-reaction-to-birth-control-reversal

http://www.chicagotribune.com/news/politics/sns-bc-apfn-us–birthcontrolpolitics,0,231697.story

http://www.lifenews.com/2012/02/15/sebelius-didnt-talk-to-bishops-about-obama-mandate/

http://www.christianpost.com/news/obamas-birth-control-mandate-unlikely-to-win-court-challenges-legal-scholar-says-70598/

http://www.foxnews.com/politics/2012/02/24/7-states-sue-to-block-contraception-mandate/

http://abcnews.go.com/blogs/politics/2012/02/rick-santorum-jfks-1960-speech-made-me-want-to-throw-up/

http://www.npr.org/templates/story/story.php?storyId=146663659

http://thehill.com/blogs/congress-blog/healthcare/210863-president-obama-and-bishops-should-keep-talking

http://www.mpnnow.com/opinions/x1676726073/EDITORIAL-Bishops-Obama-should-work-this-one-out

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

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