JURIST - Paper Chase: Saturday, November 5, 2011

[JURIST] Ohio Governor John Kasich [official website] on Friday signed [press release, PDF] into law House Bill 63 [text and materials], creating further restrictions on minors if they seek an abortion [JURIST news archive] without parental consent. The new law puts several conditions in place, advancing the former law of making a minor receive a judge's consent to have an abortion without parental notification. Now, judges may only permit abortion in cases where they have "clear and convincing evidence" that the abortion is in the best interest of the young woman after a hearing on the record. The hearing must be held within five days after petitioning the court for an abortion:

At the hearing, the court shall hear do all of the following: Hear evidence relating to the emotional development, maturity, intellect, and understanding of the minor; the nature, possible consequences, and alternatives to the abortion; and any other evidence that the court may find useful in determining whether the minor should be granted the right to consent to the abortion or whether the abortion is in the best interests of the minor; Specifically inquire about the minor's understanding of the possible physical and emotional complications of abortion and how the minor would respond if the minor experienced those complications after the abortion; Specifically inquire about the extent to which anyone has instructed the minor on how to answer questions and on what testimony to give at the hearing.

The law also requires the minor to meet with judges in their home county or an adjacent county, rather than the county they are having the abortion in, a stipulation some think may face a constitutional challenge [Columbus Dispatch report]. Ohio Right to Life [advocacy website] stated previous requirements amounted to a rubber stamp for abortions [press release] commending Kasich for signing the bill and called he and the state Congress the "most pro-life Governor and General Assembly in our state's history." Since Kasich took office, Ohio has passed three abortion restrictions, and has had a total of ten bills introduced on the subject. NARAL Pro-Choice Ohio [advocacy website] criticized the new law [press release], noting, "Governor Kasich must not be very proud of signing this dangerous bill into law because he did so on a Friday afternoon during the final hours of the election season."

Kasich signed into law a bill banning abortions after 20 weeks [JURIST report] in July, the last of several pieces of anti-abortion legislation in the state. That legislation requires doctors to determine the viability of the fetus and seek a second opinion as to whether the child is capable of surviving outside of the womb. In the event that the fetus is viable, an abortion would only be made available if the woman faced "death or a substantial and irreversible impairment of a major bodily function." In June, the Ohio House of Representatives [official website] voted 54-43 to approve legislation that would prohibit abortions after a fetal heartbeat is detectable [JURIST report], which could occur as early as six weeks into the pregnancy. The month before, a judge for the US District Court for the Southern District of Ohio [official website] upheld an Ohio law that limits the use of the "abortion pill," overturning a 2006 injunction [JURIST reports]. The law requires that the use of the pill, RU-486, conform with federal guidelines, which currently do not allow the pill to be used after seven weeks of pregnancy.

[JURIST] The New Jersey Superior Court [official website] Friday ruled [press release] that a marriage equality lawsuit [complaint text, PDF; case materials] can continue, partially denying a motion to dismiss filed by the New Jersey Attorney General [official website]. Lambda Legal [advocacy websites] filed the lawsuit in June on behalf of Garden State Equality (GSE), New Jersey’s statewide LGBT advocacy organization, and seven same-sex couples and their children who claim harm under the state civil union system. The lawsuit seeks declaratory and injunctive relief [JURIST report] against the state civil union law as a contravention of both the Fourteenth Amendment [Cornell LII backgrounder] and the New Jersey State Constitution. Assignment Judge Linda Feinberg dismissed the claims that the state law violates federal guarantees of due process and equal protection, but is allowing the the case to proceed with its claim that the civil union law is unconstitutional on state grounds, putting the controversial issue on track to eventually land in the New Jersey Supreme Court [official website]. Lambda Legal Deputy Legal Director Hayley Gorenberg praised the judge's decision:

We are delighted that the New Jersey Superior Court will allow this case to continue ... By moving to dismiss, the government was trying to prevent us from showing exactly how the current classification system based on sexual orientation harms families. New Jersey’s exclusion interferes during medical crises, denies them health insurance, and leads to discrimination against them even in funeral homes. These families need marriage equality and should not have to live with a law that treats them as inferior.

Opponents of the lawsuit have argued that there should be a referendum asking New Jersey residents whether they support a constitutional amendment allowing gay marriage. The court has not yet set a date to hear the case.

Lamda Legal filed a similar suit last year [JURIST report], but the state Supreme Court declined to hear the case, holding that it must first be heard in the lower courts. In 2009, a Superior Court judge allowed a divorce to proceed between a same-sex couple [JURIST report], but cautioned that this would not extend to legalizing same-sex marriage in New Jersey through the courts. In June when the suit was filed, New Jersey Governor Chris Christie [official website] reiterated that he will not sign a gay marriage bill into law [Bloomberg report]. The statement was in reaction to New York Governor Andrew Cuomo (D) [official website] signing legislation [A8354-2011 materials] allowing same-sex couples to marry [JURIST report] in that state. The legislation made New York the seventh US jurisdiction to allow same-sex marriage, which is also legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports]. Civil unions or domestic partnerships are currently legal in Maine, Illinois, Delaware, Hawaii, California, Wisconsin, Nevada, Oregon and Washington and await ratification in Rhode Island [JURIST reports].

[JURIST] A judge for the US District Court for the Southern District of Ohio [official website] on Friday rejected the appeal [Columbus Dispatch report] of condemned murderer Reginald Brooks, affirming but not definitively ruling on Ohio's new death penalty [JURIST news archive] procedures. In July, Judge Gregory Frost stayed the executions of two inmates [Columbus Dispatch report], agreeing with their arguments that Ohio executes inmates haphazardly, causing an unofficial death penalty moratorium as the federal courts considered the constitutionality of the state's death penalty procedure. Frost, who clarified that he was not ruling on officially reinstating the death penalty in all cases, stated that he was satisfied with the state of the reforms and would allow Brooks' execution to go forward as planned, despite his lawyers' arguments that the new policies have worsened the implementation of the death penalty. Frost's July decision decried Ohio's careless execution process, including not having required execution team members present, not documenting the drug mixtures used in the procedure and not checking inmates' veins prior to execution. Brooks' execution is scheduled for November 15 [The Plain Dealer report], although Brooks has appeals pending in state and federal courts [AP report].

Earlier this week, the Chief Justice of the Ohio Supreme Court, Maureen O'Connor [official profile] opened the first meeting of the state's death panel review committee [JURIST report]. O'Connor announced the formation of the committee [JURIST report] in September, in response to Frost's July ruling. 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.

[JURIST] United Nations (UN) [official website] High Commissioner for Human Rights Navi Pillay [official profile] praised the engagement of Moldova [official website] government officials Friday but noted troubling deficiencies in citizens' economic and social rights, during a press conference [statement, text] at the end of her four-day visit to the country. Pillay said, from the capital city of Chisinau, that her visit to Moldova was the first by a UN human rights chief, and that as the country strengthens its democracy its authorities need to address a number of concerns, including discrimination against minorities, a lack of social and economic protections for the impoverished and the need to shore up an independent judiciary to ensure equality. Pillay also noted the importance of a strong national infrastructure and education system in combating discrimination and inequality, and urged authorities to enact a comprehensive anti-discrimination law:

During my talks with the Acting President, the Prime Minister and other senior ministers and officials I have discussed a range of problems related to discrimination against certain groups in Moldova, and discussed ways of combating it — most notably by enacting without further delay a truly comprehensive law banning discrimination on all grounds. My message to the Government — and to the public — is that diversity is among our highest values. A democracy is only as strong as its ability to protect its most vulnerable.

Pillay also visited the Transnistrian region, an unrecognized breakaway territory located on Moldova's eastern border with Ukraine that claimed independence in 1990. Pillay held meetings with the de facto authorities there regarding violations of human rights of prisoners, including arbitrary detentions, torture and ill-treatment of detainees. Pillay noted that the engagement of the Office of the High Commissioner for Human Rights (OHCHR) [official website] with the de facto authorities does not amount to legitimization, only an effort by the OHCHR to address human rights issues in the region.

Moldova has taken several steps in recent years to become a more democratic nation. This year the country joined the International Criminal Court (ICC) [official website] after becoming the 114th signatory to the Rome Statute [JURIST report] in October 2010. In her statement this week Pillay observed that the "country is clearly on the road to strengthening its democracy, and aims at a number of ambitious reforms" despite the current lack of human rights enforcement for certain segments of the population. Recently Pillay made a similar statement stressing the the importance of the rule of law in Tunisia, another country taking recent steps toward democracy, after the nation held its first free elections last month. Also last month Pillay criticized Syria [JURIST report] for its failure to protect its population during the recent protests in that country, citing reports of snipers firing from rooftops at protesters and the use of live ammunition in the shelling of residential neighborhoods.