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Legal news from Friday, September 9, 2011




UN rights office concerned over renewed violence in Nigeria
Michael Haggerson on September 9, 2011 3:24 PM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights [official website] expressed concern Friday over increased ethnic violence [press release] in Nigeria's "Middle Belt" region [Nigerian Newsday backgrounder] between Christians and Muslims. The report states that up to 70 people have been killed since August, and, in order to stop cycles of violence, local authorities must work to address the underlying issues. The report also describes the recent actions of Boko Haram [CFR backgrounder] in bombing a UN building in Nigeria [VO report] last month as "cowardly." At least 18 people died in the attack. Spokesperson Rupert Colville said:
We encourage the authorities at national and local levels to take effective preventative measures against such violence, including by curbing hate-speech and working with civil society, including human rights NGOs, religious leaders and academic institutions, to attempt reconciliation between the various communities. It is of utmost importance that justice is done and is seen to be done by prosecuting the alleged perpetrators of violence and ensuring remedies for victims and their families.
Colville also stressed that "security forces must ... act in full compliance with the law."

Corruption in the Nigerian government has further inflamed ethnic rivalries. In August Human Rights Watch [advocacy website] reported that corruption in the Nigerian government has become endemic [JURIST report]. The group criticized President Goodluck Jonathan [BBC profile] and Nigeria's anti-corruption agency. Earlier that month a Nigerian official called for the creation of a special anti-corruption court [JURIST report] because corruption cases in the regular courts were taking too long to process. Nigeria's outgoing speaker of the House of Representatives was arrested in June [JURIST report] on allegations of fraud. In April the Chief Prosecutor of the International Criminal Court [official website] announced an investigation [JURIST report] into ethnic violence that broke out following the most recent national election. After Jonathan, from the predominantly Christian south, defeated the challenger Muhammadu Buhari [BBC profile], from the predominantly Muslim north, riots ensued, resulting in the death of over 100 people and the displacement of more than 40,000.




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Mississippi high court upholds election initiative to redefine personhood
Maureen Cosgrove on September 9, 2011 10:47 AM ET

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[JURIST] The Supreme Court of Mississippi [official website] on Thursday ruled [opinion, PDF] that an initiative seeking to redefine personhood can be placed on the November 2011 general election ballot. The initiative, Measure 26 [materials], would amend the Mississippi Constitution to define the word "person" or "persons" to include "every human being from the moment of fertilization, cloning, or the functional equivalent thereof." Two Mississippi citizens filed the lawsuit after it was qualified, claiming the initiative violated Article 15, Section 273(5)(a) [text, PDF] of the Mississippi Constitution. The court refused to rule on the constitutionality of the initiative itself, but concluded that it could not interfere with or question the validity of a legislative proposal prior to the election. The court, therefore, ultimately dismissed the challenge on the basis that Measure 26 is not ripe for review. The Executive Director of the American Civil Liberties Union of Mississippi (ACLU) [advocacy website] Nsombi Lambright expressed her discontent with the ruling and called on voters to reject the measure:
We're disappointed with the ruling. A measure will be on the ballot that will allow the government to dictate what is a private matter that's best decided by a woman, her family and within the context of her faith. Mississippi voters should reject this intrusive and dangerous measure.
Personhood USA [official website] praised the ruling [press release], saying "Mississippians volunteered thousands of hours of their time to ensure that voters would have the right to vote on this prolife amendment."

Colorado voters struck down [Denver Post report] a similar ballot initiative [text, PDF] in November 2010 that would have amended the state's constitution [text] to extend rights to fetuses [JURIST report] and would have effectively outlawed abortion [JURIST news archive]. In November 2007, the Colorado Supreme Court [official website] approved the language of an anti-abortion group's proposed ballot initiative that would amend the Colorado constitution [JURIST report] to define a fertilized egg as a "person" entitled to "inalienable rights, equality of justice, and due process of law" under the state constitution. JURIST Guest Columnist Caitlin Borgmann argues that redefining personhood is just one of several approaches aimed at curtailing abortion [JURIST op-ed].




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Fourth Circuit rejects Virginia health care law challenge
Sarah Posner on September 9, 2011 10:25 AM ET

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[JURIST] The US Court of Appeals for the Fourth Circuit [official website] on Thursday dismissed two lawsuits challenging the constitutionality of the new Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST backgrounder]. In Virginia v. Sebelius [opinion, PDF], the court held that Virginia lacked standing to sue and vacated the judgment of the district court [JURIST report], remanding the case with instructions to dismiss the suit for lack of subject-matter jurisdiction. Circuit Judge Diana Gribbon Motz wrote:
[T]he lack of factual context here impedes analysis of the underlying constitutional disputes. For example, both parties premise their Commerce Clause arguments on their competing characterizations of what the individual mandate regulates. A number of factors might affect the validity of these characterizations, including a taxpayer's current possession of health insurance, current or planned future consumption of health care, or other related voluntary action. The case at hand lacks the concrete factual context critical to a proper analysis of these issues.
In Liberty University v. Geithner [opinion, PDF], the court ruled that the suit was filed prematurely, also vacating the lower court ruling [JURIST report], which had declared the act constitutional.

Although the Fourth Circuit dismissed the case without deciding the constitutionality of PPACA, the US Supreme Court [official website] may eventually rule on the issue. Last month, the US Court of Appeals for the Eleventh Circuit [official website] struck down the individual mandate [JURIST report] as unconstitutional, creating a circuit split. The US Court of Appeals for the Sixth Circuit [official website] had upheld the law in June, and that ruling was appealed [JURIST reports] to the Supreme Court by the Thomas More Law Center (TMLC) [advocacy website]. Also last month, the US Court of Appeals for the Third Circuit [official website] dismissed a lawsuit [JURIST report] brought by a physician organization for lack of standing.




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ECJ rules France ban on genetically modified maize illegal
Sarah Posner on September 9, 2011 9:57 AM ET

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[JURIST] The European Court of Justice (ECJ) [official website] ruled [case materials; press release, PDF] Thursday that France's ban on the cultivation of a genetically modified (GM) maize was illegal. Although France has the right to impose a ban on GM maize, the court stated that France acted illegally by not following proper EU protocol [Reuters report]. In order to impose a ban, EU members must demonstrate that the product poses a serious risk to the environment or human or animal health, and notify the European Commission [official website] authorities of the need to take emergency measures. The GM maize was developed by US biotech giant Monsanto [corporate website] in 2008. The use of GM organisms, whether through experimentation or cultivation, is governed by EU law. France issued two orders prohibiting the planting of MON 810 maize seed, which is primarily used to make animal feed resistant to certain parasites. France first banned the product by way of emergency measures in 2007.

In March, ECJ Advocate General Paolo Mengozzi issued an opinion [JURIST report] stating that a French ban on cultivating genetically modified (GM) crops is illegal. France sought to prohibit production of MON 810 within its borders by citing a safeguard clause adopted by the EU in 2004. The clause is designed to allow EU member states to restrict previously approved products in the event that new evidence emerges indicating that the product in question is harmful to either humans or the environment. MON 810 was approved for use by the EU in 1998, and Mengozzi disagreed with applying the clause on the grounds that France imposed its ban without proper European Commission consultation. Though such opinions are not binding, courts typically adopt the stance set forth by advocates general, as the court did here.




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UK lifts ban on blood donations from gay men
Maureen Cosgrove on September 9, 2011 9:49 AM ET

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[JURIST] The UK Department of Health (DH) [official website] announced Thursday that it will lift the lifetime ban on blood donations [press release] from men who have had sex with other men. Britain introduced the lifetime ban in the 1980s in an effort to quell the proliferation of HIV and AIDS [AFP report]. Men who have not had sex with another man in over 12 months will be eligible to donate, though men who have had anal or oral sex with another man in the 12 months prior to donating will not be able to donate, regardless of whether they used a condom. Deirdre Kelly, a member of the Advisory Committee on the Safety of Blood, Tissues and Organs (SaBTO) [official website] review panel, said the repeal would not affect public safety:
Around two million individuals generously donate blood every year in the UK to save patients' lives. The SaBTO review examined the best available scientific evidence for UK blood donor selection in relation to sexual behaviours. Our recommendation takes account of new data that have become available since the last review in 2006, as well as scientific and technological advances in the testing of blood. Adherence to the donor selection criteria is vital to maintain the safety of the blood supply, and donors need to be assured that the criteria are evidence-based. We are confident that this change maintains the safety of the blood supply.
The NHS Blood and Transplant (NHSBT) [official website] in England and North Wales and the Blood Services of Scotland and Wales will implement the changes on November 7.

Bans on blood donations from homosexual individuals garner much debate. The US Department of Health and Human Services (DHHS) [official website] in July asked experts to review a similar US policy [ABC report] that bars gay men from donating blood. An Ontario Superior Court [official website] judge ruled [judgment, PDF] in September 2010 that the Canadian Blood Services (CBS) is justified in prohibiting sexually active gay males from donating blood [JURIST report] on the grounds that the CBS discriminates on the basis of health and safety considerations rather than on sexual orientation. In March 2009, a Tasmanian court upheld [JURIST report] an Australian Red Cross [organization website] policy [text] to refuse blood donations from sexually active homosexual males. Petitioner Michael Cain tried to donate blood in 2004, but his offer was refused after he affirmatively answered an inquiry into whether he "had male-to-male sex" in the past 12 months. The tribunal held that Cain's complaint was unsubstantiated and that the conduct of the Red Cross did not amount to direct or indirect discrimination under the Anti-Discrimination Act of 1998 [text].




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Ohio death penalty procedure to be reviewed
Hillary Stemple on September 9, 2011 9:47 AM ET

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[JURIST] The Chief Justice of the Ohio Supreme Court, Maureen O'Connor [official profile], on Thursday announced the formation of a joint task force between the Supreme Court of Ohio and the Ohio State Bar Association [official websites] that will review the procedures [text] surrounding Ohio's death penalty [JURIST news archive] law. O'Connor indicated that the task force was being created not to judge or discuss whether the state should have the death penalty, but rather to ensure that the law is "administered in the most fair, efficient, and judicious manner possible." The task force will be chaired by Retired Judge James Brogan of the Ohio Second District Court of Appeals and will include judges, prosecuting attorneys, criminal defense counsel, legislators and academics. O'Connor indicated that the diverse backgrounds of the participants will "ensure that the criteria, laws, and procedures regarding the imposition of the death penalty in Ohio are fair, impartial, and balanced." The task force will be reviewing death penalty laws and procedures from other jurisdictions and analyzing the data and costs associated with those laws. They will also review information included in the American Bar Association's Death Penalty Moratorium Implementation Project [materials] in order to "identify areas in need of action and recommend the course of action."

In December 2010, the Ohio Supreme Court rejected a challenge [JURIST report] to the lethal injection method of execution and indicated that they would not hear further cases regarding lethal injection until the Ohio General Assembly [official website] explicitly expanded state review of death penalty cases. In November 2009, Ohio adopted a single-drug lethal injection protocol [JURIST report], replacing the previously used three-drug method. The single-drug lethal injection method has faced numerous challenges, with one case reaching the US Supreme Court [official website]. In March 2010, the Supreme Court refused [JURIST report] to stay the execution of an Ohio inmate challenging the state's single-drug execution protocol. Ohio conducted its first execution [JURIST report] using the new procedure in December 2009. The change in procedure came after the state undertook a review [JURIST report] of its lethal injection practices in September 2009, following the planned execution of inmate Romell Broom failed when a suitable vein for the drugs' administration could not be found.




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ACLU challenges North Carolina pro-life license plates
Hillary Stemple on September 9, 2011 8:54 AM ET

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[JURIST] The American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF) [advocacy website] on Thursday filed a lawsuit [complaint, PDF] in the federal district court for the Eastern District of North Carolina challenging a North Carolina state law authorizing the use of pro-life license plates as a violation of the First Amendment [text]. In June, the North Carolina General Assembly [official website] passed a bill [HB 289 materials] authorizing the issuance of "Choose Life" license plates, but failed to authorize the use of license plates stating, "Trust Women. Respect Choice," or "Respect Choice," which would indicate advocacy of reproductive rights. The ACLU-NCLF alleges that allowing pro-life proponents to express their views through the use of license plates while denying the same right to pro-choice proponents is discriminatory and in violation of the First Amendment. Katherine Lewis Parker, the Legal Director of the ACLU-NCLF, indicated that the law is being challenged because of its inhibitions on freedom of speech [statement] and not because of the abortion position advocated by the license plates, stating:
This is a basic issue of freedom of speech and fairness. It is a fundamental tenet of the First Amendment that the State cannot use its authority to promote one side of a debate while denying the same opportunity to the other side. Anyone who supports freedom of speech should agree with this stance, regardless of one's position on abortion. Our position would be the same if the State had authorized a pro-choice license plate but not an anti-choice alternative. In that situation, the ACLU-NCLF would be suing on behalf of anti-choice drivers under the exact same theory of viewpoint discrimination.
The complaint asks the court declare the current law unconstitutional and to order the state to stop issuing the pro-life license plates without authorizing and issuing a pro-choice plate.

In addition to the pro-life license plate law, the North Carolina General Assembly also passed legislation [HB 854 materials] in June that would require a 24-hour waiting period before receiving an abortion [JURIST news archive]. The "Woman's Right to Know Act" also requires women seeking an abortion to view an ultrasound of the fetus prior to the procedure. North Carolina Governor Beverly Perdue [official website] vetoed [JURIST report] the legislation calling it "a dangerous intrusion into the confidential relationship that exists between women and their doctors." In July, however, both the House and Senate [JURIST reports] voted to override the veto, allowing the legislation to become North Carolina law. Opponents of the law have called it "draconian" and have stated that women seeking abortions will face dramatic changes once the law takes effect, while supporters contend that the new law will give women the opportunity to "know all the facts" about abortion.




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