JURIST - Paper Chase: Thursday, March 29, 2012

[JURIST] The Supreme Court of Canada [official website] on Thursday denied the government leave to appeal [judgments in leave] a decision requiring them to turn over redacted documents providing information about Afghan prisoner treatment. The complaint [case information] was filed by University of Ottawa law professor Amir Attaran [faculty profile], whose previous research uncovered a pattern of suspicious injuries on three detainees captured in April 2006 and later released. Attaran was originally granted permission [Ottawa Citizen report] to view the documents with significant portions blacked out. A Court of Appeals ordered the government to provide a more complete version of the documents in May 2011. Thursday's decision denied the government's final appeal, and Attaran is expected to receive a new version of the documents.

The Canadian Military Police Complaints Commission (MPCC) [official website] released a report in 2009 concluding that three Afghan detainees were not mistreated while in Canadian military police custody in Kandahar in 2006. The probe began following a civilian complaint filed by Attaran. The Canadian government ordered the inquiry [JURIST report] in February 2007. There are ongoing investigations into complaints [JURIST report] filed by Amnesty International Canada (AIC) and the British Columbia Civil Liberties Association (BCCLA) [advocacy websites]. Following public outcry, Canada signed a new agreement regarding detainee transfers [JURIST report] with the Afghan government in May 2007, giving Canada the right to inspect detainees following their transfer.

[JURIST] The New Hampshire Senate [official website] on Wednesday approved a bill [SB 409 text, PDF] to legalize medical marijuana [JURIST news archive]. The proposed law would allow the state to issue cards to patients with illnesses such as cancer, glaucoma, HIV/AIDS, MS and others. A prospective recipient of a card would be required to get consent from a doctor and undergo a full medical history to prove the existence of one of the stipulated conditions. The legislation would also require an ongoing doctor-patient relationship with the prescribing physician. The locations where the patient can use the drug would also be limited. The bill essentially would protect cardholders from prosecution, while allowing them to grow up to four marijuana plants in a secure location, under the control and oversight of the Department of Health and Human Services [official website]. One of the bill's co-sponsors in the House is Representative is Evalyn Merrick [official profile], a cancer survivor who sponsored a similar bill [HB 442 materials] in 2011. That legislation died in the Senate. Previous bills have also met with gubernatorial opposition. A 2009 bill passed both houses but was vetoed by the governor, and the Senate could not get enough votes to override the veto.

In 2010 New Jersey became the fourteenth US state to legalize medical marijuana. In November 2009 voters in Maine approved [JURIST report] an expansion [proposed legislation, PDF] of the state's existing medical marijuana laws, making Maine the fifth state to allow dispensaries, following California, Colorado, Rhode Island, and New Mexico. In October 2009 US Attorney General Eric Holder issued guidelines for a new policy [JURIST report] for investigating and prosecuting state-sanctioned medical marijuana use. Those guidelines reflect a pledge made by Holder in March 2009 to stop federal raids [JURIST report] on medical marijuana dispensaries that comply with state laws. Ending such raids was one of President Barack Obama's campaign promises [Boston Globe report], a view that differed sharply from the policy of the Bush administration. However, earlier this month a federal judge ruled that medical marijuana providers were not exempt from prosecution [JURIST report] by federal authorities.

[JURIST] John Harris, former chief of staff to Illinois governor Rod Blagojevich [JURIST news archive], was sentenced to 10 days in prison this week in the US District Court for the Northern District of Illinois [official website] for his part in trying to sell President Barack Obama's vacant Senate seat. Harris pleaded guilty [JURIST report] to a single count of wire fraud in 2009 after agreeing to testify [Reuters report] against Blagojevich and four other defendants. Blagojevich was sentenced to 14 years in prison in December after he was convicted [JURIST reports] of 18 counts of corruption earlier last year. He reported to prison to serve his sentence on March 15.

Weeks after his conviction, lawyers for Blagojevich filed notice that they will appeal [JURIST report]. Blagojevich was scheduled to be sentenced in October after he was convicted in June, but the sentencing hearing was delayed [JURIST report] until December. In January 2009 the Illinois State Senate voted unanimously [JURIST report] to convict Blagojevich of abuse of power and remove him from office. Blagojevich is the first Illinois governor to be impeached and removed from office. Blagojevich and Harris were initially arrested [JURIST report] in December 2008.

[JURIST] Amnesty International (AI) [advocacy website] published a report [report, PDF] Wednesday accusing the US Border Patrol and Immigration and Customs Enforcement (ICE) [official websites] of discriminating and committing rights abuses along the border between Mexico and the US. AI claims that discriminatory practices and harsh policies responding to immigration by US officials results in the deaths of hundreds each year, and that as many as 5,287 died crossing the border between 1998 and 2008. In a release [group news article] accompanying the report, the group said that the US is "failing in its obligations under international law to ensure" human rights to illegal immigrants within its borders. The report is critical of both federal policy and enforcement as well as those of border states, particularly Texas and Arizona. AI enumerated the responsibilities the US has under international law with respect to immigration:

The US government has an obligation under international human rights law to ensure that its laws, policies and practices do not place immigrants at an increased risk of human rights abuses. This includes acting with due diligence to investigate and punish criminal conduct, such as domestic violence or human trafficking, committed by private individuals, and guaranteeing access to justice for immigrant victims of crime.

Department of Homeland Security (DHS) [official website] spokesman Matt Chandler responded to the report [Reuters report] by claiming that AI was basing its report on "outdated information or anonymous anecdotes" and further criticized it as not offering "actionable recommendations for improvement." AI recommends that all immigration enforcement programs should be suspended until a review can be conducted by the DHS Inspector General.

The report comes as a general movement has been sweeping the country toward tougher enforcement of immigration policy. The trend began with a controversial law in Arizona [JURIST news archive], and similar legislation has passed in Utah, South Carolina and Indiana [JURIST reports]. In December the Supreme Court granted certiorari to determine whether Arizona's controversial immigration law is preempted by federal law [JURIST report]. In November the US Department of Justice (DOJ) [official website] urged the Supreme Court not to hear Arizona's appeal [JURIST report]. The Supreme Court in May ruled in Chamber of Commerce v. Whiting [Cornell LII backgrounder] that Arizona's controversial employment-related immigration law is not preempted [JURIST report] by the federal Immigration Reform and Control Act (IRCA).

[JURIST] The Russian lower house of Parliament, the State Duma [website], will consider a controversial bill introduced by lawmakers on Thursday that bans the spread of "homosexual propaganda" to minors. The bill calls for fines [AP report] of up to 500,000 rubles (USD $16,500) for promoting the homosexual lifestyle and appears to be aimed at media outlets which lawmakers blame for "promoting gay lifestyles as 'normal behavior.'" The bill is similar to a bill signed into law [JURIST report] early this month in St. Petersburg that imposes fines against people convicted of promoting homosexuality, including gays or lesbians who are open about their sexuality. The St. Petersburg bill was introduced in November [JURIST report], and sponsors claim it is necessary because homosexual propaganda "threatens" Russia [RIA Novosti report] and that "sexual deviation" negatively impacts Russian children. Earlier this month, Human Rights Watch (HRW) [advocacy website] called on Governor Georgy Poltavchenko to veto the St. Petersburg legislation [news release], which they called a "discriminatory and dangerous initiative." The new bill also calls for fines of up to 1 million rubles for promotion of pedophilia.

Russia has long struggled with the acceptance of homosexuality. In 2008, several Russian gay rights activists were arrested [JURIST report] by police in Moscow for holding events commemorating the 1993 law that put an end to government prosecution for homosexual activity in Russia. It was the third consecutive year Moscow Pride held events around the city to elude officials attempting to enforce a local ban on gay pride parades [JURIST report] that was put in place due to fears of violence. The UN has attempted to pass resolutions aimed at ending sexuality discrimination worldwide but has faced difficulty passing resolutions on gay rights issues. Last year the UN Human Rights Council (UNHRC) [official website] passed the "Human rights, sexual orientation and gender identity" resolution [text, PDF], which is the first resolution to call for an end to sexuality discrimination worldwide [JURIST report]. In 2010 UN Secretary General Ban Ki-moon [official website] called for countries around the world to abolish laws discriminating against gay and lesbian individuals [JURIST report]. A year earlier, the UN passed a gay rights declaration [JURIST report] calling on states to end criminalization and persecution of homosexuals. This declaration was recalled by the new resolution. Although 85 countries signed the declaration [US Ambassador statement], 57 countries, primarily in Africa and the Middle East, signed an opposing statement. In 2008, the UN General Assembly [official website] was divided over the issue of decriminalizing homosexuality [JURIST report] as 66 nations signed a statement calling for decriminalization, and nearly 60 nations signed an opposing statement.

[JURIST] Mali leaders announced on Thursday that they have drafted a new constitution following last week's military coup [JURIST report]. In a statement read on Mali state television, it was announced that the new constitution will allow citizens to demonstrate or go on strike and that it will provide immunity to the leaders of the military coup. The announcement comes after the Economic Community of West African States [official website] announced it would send a delegation into Mali [press release] to "secure the speedy restoration of constitutional order in the country." The country's new leaders also announced that they plan to hold elections, although they did not announce an election date. Under the new constitution, the leaders of the coup that toppled President Amadou Toumani Toure [Al Jazeera profile] would not be eligible to run for elected office.

Mali has experienced military turmoil since Taureg rebels began attacking Malian soldiers [Al Jazeera report] in January. Earlier this week, the acting head of the EU delegation in Mali, Bertrand Soret, met with the leader of the coup [JURIST report] urging a quick return to constitutional order in the country. Early this month, the UN Refugee Agency (UNHCR) [official website] said that more than 80,000 people had fled Mali [press release] to escape the fighting. In February, the UNHCR appealed for additional funds and resources [report, PDF] to deal with the crisis, after UN Secretary General Ban Ki-Moon [official profile] expressed concern [statement] about the growing number of refugees in the region.

[JURIST] An Oklahoma County judge struck down [order, PDF] on Wednesday a state law [HB 2780 text, RTF] requiring doctors to perform an ultrasound and describe a woman's fetus to her before she undergoes an abortion [JURIST news archive]. The Court held that the 2010 Ultrasound Act is unconstitutional and unenforceable under the Oklahoma Constitution. The court ultimately amended a temporary injunction issued in 2010 [JURIST report] to a permanent injunction, disallowing the enforcement of the Act. After the order was handed down, Nancy Northup, president and CEO of the Center for Reproductive Rights [official website], the party challenging [petition, PDF] the law, praised the court's decision [press release]:

The court has resoundingly affirmed what should not be a matter of controversy at all—that women have both a fundamental right to make their own choices about their reproductive health, and that government has no place in their decisions. Today's decision adds to the growing momentum of a nationwide backlash against the overreaching of lawmakers hostile to women, their doctors, and their rights.

The lawsuit argued that the Act violates physicians' rights to equal protection of the law and freedom of speech, while discounting a woman's ability to make decisions about her pregnancy.

This decision comes at the heels of other state legislatures reviewing similar matters. Last month, the US District Court for the Western District of Texas [official website] ruled [order, PDF] that Texas can begin enforcing [JURIST report] a state law that requires women to have a sonogram before undergoing an abortion. Also last month, the Virginia Senate approved a bill [JURIST report] that would require women seeking abortions to have transabdominal ultrasounds before the procedure, and require a doctor to inform a woman of the gestational age and development of the fetus. In October, a judge for the US District Court for the Middle District of North Carolina [official website] issued a preliminary injunction [JURIST report], blocking part of the state's abortion law that required a physician to perform an ultrasound and describe the images to the patient. In March 2010 the Supreme Court of Oklahoma [official website] ruled [JURIST report] that a state law [SB 1878 text, RFT] imposing broad restrictions on abortion, including the requirement of an ultrasound one hour prior to the procedure, violated that state's constitution.

[JURIST] The US Supreme Court [official website] on Wednesday heard the final day of arguments on the constitutionality of the Patient Protection and Affordable Care Act (PPACA) [text; JURIST backgrounder] in the case of United States Department of Health and Human Services v. Florida [transcript; JURIST report]. In the morning the court heard arguments on the issue of whether the "individual mandate" can be severed [transcript, PDF] from the rest of the PPACA if the mandate is deemed unconstitutional. Washington attorney Paul Clement opened with arguments for the challengers, claiming that the individual mandate [text] is the heart of the statute and that, if you take it out, there is a chain of provisions that would no longer be workable with the goals of the legislation, and as such the court would have to strike down the entire PPACA. Clement argued for an "objective test" that would have the court determine whether the legislation can function the way Congress intended. He went on to claim that the text of the act and Congress' own findings state that the individual mandate is fundamental to key provisions essential to Congress' intended manner of operation. Clement also listed a chain of other provisions that would be fundamentally changed, such as the community rating and guarantee-issue provisions, which are essential to making the insurance exchanges work, which are essential to the tax credits, which are essential to policy prices on the exchanges, and so on. In the end Clement argued if the individual mandate is taken out, all that is left of the PPACA is a "hollowed-out shell" of what Congress passed, requiring the PPACA to be struck down in its entirety. Senior Deputy Solicitor General Ed Kneedler [National Law Journal report] argued for the government that the whole PPACA does not need to be struck down if the individual mandate alone is found to be unconstitutional. Kneedler agreed that the individual mandate is essential to the community rating and guaranteed-issue provisions, which should be struck down if the mandate is struck down. He argued, however, that the rest of the PPACA is severable from that package of provisions, and that the legislation can still accomplish Congress's goal of protecting patients. He argued that the aim of those other provisions was to reduce costs across the board, but that without them there are many other provisions, such as tax incentives for employers and an expansion of Medicaid, which still perform the function of increasing access to affordable care. Finally the court heard from court-appointed attorney H. Bartow Farr III [corporate profile], who argued on behalf of amicus parties that the individual mandate is severable from even the community rating and guaranteed-issue provisions, and that if the individual mandate is held to be unconstitutional, there is no need to strike down more than that one provision. He argued that the mandate was only one solution that was enacted to reduce costs of adverse selection resulting from the other provisions, and that those sections will still serve that purpose. Farr also argued that subsidies would be lowered because people will be able to opt out of the system altogether.

In the afternoon the court heard arguments on whether the expansion of the Medicaid program [transcript, PDF] under the PPACA amounts to unconstitutional coercion of the states by the federal government. Clement argued that the federal government's offering incentives for a state's voluntary participation in the act's Medicaid expansion is coercive and violates states' rights on federalism grounds. Clement claimed that this dolling out of Medicaid funds is different from previous distributions in that, unlike in previous situations, coverage of newly eligible individuals is not voluntary. He also asserted that, under the PPACA, the government will have the power to take away any funds it sees as reasonably related to a state's non-participation, and that this power could be abused to take away funds on which the state has relied in the past. Such a scenario would be unconstitutional because Congress cannot accomplish its goals by coercing states through its Article I spending power [Cornell LII backgrounder]. Clement also argued that the Medicaid expansion's tie to the non-voluntary individual mandate makes it coercive to states that would choose to not participate. Solicitor General Donald Verrilli again argued for the US, pointing out that the government has always had the power to amend the Medicaid program, something the states have always known. Verrilli further argued that the PPACA's new regulation does not amount to coercion, as the states would not lose more than is reasonably related to the new conditions of the health care law. He claimed that coercion is about "what you stand to lose rather than what you stand to gain"—a counter to Clement's argument that the extraordinary amount of funds offered, between 10 and 40 per cent of states' annual budgets, is one reason for why the Medicaid expansion is coercive. The Supreme Court will now discuss and make a final decision on the issue. In complicated cases, the court usually does not issue a decision until the end of its session in June.