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Access to abortion pills has grown since Dobbs

Originally published in Vox on December 27, 2023.
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Eighteen months after the Dobbs v. Jackson decision that overturned the constitutional right to abortion, and with a new Supreme Court challenge pending against the abortion medication mifepristone, confusion abounds about access to reproductive health care in America.

Since the June 2022 decision, abortion rates in states with restrictions have plummeted, and researchers estimated last month that the Dobbs decision led to “approximately 32,000 additional annual births resulting from bans.” Journalists profiled women who carried to term since Dobbs because they couldn’t afford to travel out of their restrictive state.

The total number of abortions in the US, however, has increased since the overturn of Roe v. Wade, driven by more people ending pregnancies in states that have laws friendly to abortion care. And often lost in this conversation is the fact that access to medication abortion has actually expanded in significant ways since the overturn of Roe v. Wade, both in terms of lower costs and avenues to obtain the pills quickly. The problem is many people who would be able to take advantage don’t know about it.

Taking a combination of mifepristone and misoprostol within the first 12 weeks of a pregnancy was already the most common method for abortion in the United States before the Dobbs decision, partly due to its safety record, its lower cost, diminished access to in-person care, and greater opportunities for privacy. The popularity of medication abortion has only grown since then: A poll released in March found majorities of Americans support keeping medication abortion legal and allowing women to use it at home to end an early-stage pregnancy. Another survey found 59 percent of voters disapprove of overturning the FDA’s approval of abortion medication, including 72 percent of Democrats, 65 percent of independents, and 40 percent of Republicans.

A June report from the Society of Family Planning found abortion via telemedicine “increased by 85 percent compared to the pre-Dobbs period, going from comprising 5 percent of all abortions to 9 percent.” And this is likely an understatement, Dana Northcraft, the founding director of Reproductive Health Initiative for Telehealth Equity and Solutions, told Vox. “That number does not include telehealth visits by providers who also do brick-and-mortar visits, [and] it does not include self-managed abortions outside of the formal medical system,” she said.

Getting the word out about medication abortion has been difficult for activists, especially with headline-grabbing news stories about new efforts to restrict the pills and punish those seeking to bypass state bans. In the early months following the Dobbs decision, if you lived in a state that banned abortion, your best bet was probably ordering pills from overseas, via the reproductive health care nonprofit Aid Access, even though their shipments could take two to three weeks.

Today, though, providers and new organizations ship pills directly from the US to pregnant people living in more restrictive states, dramatically reducing the amount of time it takes to send the medication through the mail. International volunteer networks have also expanded to help women end their pregnancies, and campaigns to destigmatize misoprostol-only abortions, a common method used around the world, have accelerated.

“We’re trying to shout this all from the rooftop,” Elisa Wells, the cofounder of Plan C, told Vox. “People are worried and there’s a lot of questions out there — is this all legit? Are the pills actually going to arrive? And we’re trying to say yes, these really are real routes of access.”

How “shield laws” have transformed the distribution of abortion pills

One of the biggest expansions to access since Dobbs is via broader access to telehealth abortion care in the US, even for those living in states with bans. Telehealth abortion care means a patient can consult virtually with a provider, either on an app or in a phone call or videoconference. Following that consultation, the provider would fill a prescription for the medication, and it would be delivered via mail.

Efforts to expand telehealth abortion care existed prior to the overturn of Roe v. Wade. Over the objections of groups like the ACLU and the American Congress of Obstetricians and Gynecologists, the Food and Drug Administration had long barred doctors from prescribing mifepristone without an in-person health care visit first. The Biden administration eased up on this rule during the pandemic, and in December 2021 the FDA permanently lifted its restriction on telemedicine for mifepristone. (State-level restrictions on abortion telemedicine still exist.)

“I think Dobbs just lit a fire under the innovations that were already underway,” Kirsten Moore, the director of the Expanding Medication Abortion Access project, told Vox. “[Telemedicine] was already happening during the pandemic and then in the post-Dobbs world everyone started thinking, ‘Oh wait, this is what we’ve got to do.’”

One major facilitator of expanded telemedicine is the profusion of new so-called “shield laws” that would protect blue-state abortion providers who send pills to people living in states where abortion is illegal. Today, six states — New York, Massachusetts, Vermont, Washington, Colorado, and California — have such telemedicine abortion shield laws, though not all have taken effect (California’s won’t until January 1). Julie Kay, the co-founder of the Abortion Coalition for Telemedicine, told Vox these laws are already facilitating the distribution of pills to 6,000 patients per month in states with bans. One major advantage is that shipping pills from a US state with a shield law is much faster than shipping pills from overseas. The medication can arrive in days, rather than weeks.

Kay said the effort to pass shield laws was led by the medical community, not traditional pro-choice advocacy groups. “Our focus has really been on serving marginalized communities in red states that have been denied abortion, West Virginia all the way through Texas,” she said. “A lot of people living there are not able to travel but do not know they have another option.”

While these laws have yet to be tested in court, providers expect legal challenges eventually and have been taking steps to protect themselves, like avoiding travel to states with abortion bans in case a prosecutor tries to arrest them for violating their criminal statute.

Some providers living in states with shield laws are interested in stocking and shipping the medication themselves. Others say they’d be interested if they could send prescriptions to a pharmacy that would handle the mailing for them. Starting in the new year, one online pharmacy based in California, Honeybee Health, aims to help abortion providers living in states like New York and Massachusetts serve more patients nationally.

“We think people, including the media, are less familiar with the idea that you can have an abortion by mail and that the service of telehealth abortion is available in every single state — even those with bans,” said Wells, of Plan C. “That didn’t exist before Dobbs. That is the big change that’s happened. People find it unbelievable, but it’s also fantastic.”

Wells says the big shift really happened in June 2023, when Aid Access became the first organization to start leveraging the new shield laws in the US. No longer would a pregnant person in Texas or Oklahoma searching for Aid Access online be routed to an abortion provider in Europe or need to wait for a pharmacist in India to mail them medication. Shortly thereafter, a new US organization, Abuzz, launched to provide telemedicine abortion to 30 states, followed in September by the Massachusetts Medication Abortion Access Project, which also utilizes shield laws for telemedicine care.

The e-commerce marketplace for abortion medication has expanded, and the cost for pills has fallen dramatically

Outside of telemedicine options, there are over two dozen e-commerce websites that sell and ship medication abortion to the US. This international supply chain has grown significantly since Dobbs and most of these sites do not require prescriptions and do not require people to upload their IDs or have medical consultations. Plan C has vetted 26 of these sites, including testing their pills to ensure they’re “real products of acceptable quality.”

Seven of the sites Plan C has vetted offer pills for prices ranging from $42 to $47, with delivery times between two and nine days. The sites are typically selling generic medications originating from India, with the help of US-based shippers.

One unexpected development this year was that many of these e-commerce websites ultimately dropped their prices by hundreds of dollars, in an effort to get higher placement on Plan C’s website.

Another pharmaceutical provider — ProgressiveRx — provides a prescription, pills, and a telehealth consultation all for $25, though its shipments from India typically take three to four weeks to arrive. Wells says ProgressiveRx is a great option for women living in restrictive states to stock up on pills in advance. (Mifepristone has a shelf life of about five years, and misoprostol about two years.)

The New York Times estimated in April that international suppliers were likely to provide abortion pills to about 100,000 Americans in the year after Dobbs was decided, or “enough pills to cover about 10 percent of the country’s annual abortions.” Anti-abortion groups have acknowledged the difficulty in stopping the flow of abortion drugs into the US.

Volunteer distribution networks have expanded

Community support groups, also known as “companion networks,” have grown since the overturn of Roe v. Wade and now actively provide free abortion pills to people living in states with bans on reproductive health care. These groups, some of which can be found on sites like Plan C and Red State Access, mail medication abortion and offer doula support.

“You communicate with these groups via [encrypted messaging apps like] Signal, and you don’t need a credit card or a bank account, which can be especially important for young people who might not have those resources,” Wells said. “We know the volunteer networks well and we have no hesitation in recommending them.”

Some of the volunteer companion networks are aided by activists in Mexico. The most prominent Mexican activist group is Las Libres, which was founded in 2000 to serve Mexican women. Abortion access in Mexico has improved, though, and in 2021 Las Libres pivoted to helping Texas women who were newly subject to the state’s six-week ban. The group’s US focus expanded further after Dobbs, and after Mexico’s Supreme Court decriminalized abortion nationwide in September 2023. In 2022 alone, Las Libres helped terminate roughly 20,000 pregnancies in the United States.

How medication abortion access could change in 2024

Earlier this month, the US Supreme Court announced it would hear a challenge to mifepristone, the abortion medication that anti-abortion groups claim was unlawfully approved back in 2000.

While abortion advocates doubt the justices will go so far as to pull mifepristone off the market, as a federal judge in Texas attempted to do earlier in 2023, they are bracing for the possibility that the court might reimpose medically unnecessary restrictions on access, like bans on prescribing mifepristone via telemedicine.

Even if that happens, though, most of the aforementioned options for accessing medication abortion would remain intact. It’s not clear if the FDA would even abide by such a Supreme Court ruling, but if it did, providers using shield laws could still legally ship misoprostol to patients in banned states.

“A Supreme Court ruling wouldn’t affect the community-based networks, ProgressiveRx, or the e-commerce websites that sell pills at all, and so there would still be ways of getting mifepristone and misoprostol in the mail,” Wells said. “The Supreme Court could affect services like Aid Access and Abuzz, but they could also switch to misoprostol-only abortions and that’s what they’re planning to do.”

While not FDA-approved, misoprostol-only abortion is a method backed by the World Health Organization, and a common way of ending pregnancies around the world. The National Abortion Federation, in its clinical guidelines, says that “where mifepristone is either not legally available or inaccessible, misoprostol-alone regimens may be offered.”

Kay, of the Abortion Coalition for Telemedicine, told Vox that some abortion providers will probably continue to ship mifepristone even if the Supreme Court reinstates the ban on mailing the pills, given that the combination of mifepristone and misoprostol is slightly more effective than misoprostol-only abortions. (Both options are considered safe for patients, but studies show using just misoprostol is effective at ending pregnancy about 88 to 93 percent of the time, versus 95 to nearly 100 percent for the two-drug regimen.)

A bigger threat to medication abortion access than the Supreme Court may be the election of a Republican to the White House next November, who would control appointments to key federal enforcement agencies like the Justice Department, the Department of Health and Human Services, the US Postal Service, and the FDA.

Anti-abortion groups have already declared medication abortion their top priority if Donald Trump or another Republican is reelected. While GOP lawmakers in Congress might not have enough votes for a federal abortion ban, activists see new executive orders as an alternative way to restrict pill distribution. Anti-abortion activists say they intend to track the views of potential GOP appointees, rather than press Republican presidential candidates on their specific regulatory plans.

Moore, of Expanding Medication Abortion Access, said one risk is that the government will raise the threats of criminal or financial penalties against providers, dissuading more clinicians from offering care.

How abortion rights activists are working to further improve access to pills

Though the cost of medication abortion has dropped substantially since Dobbs, the price is still out of reach for some who need it, and activists are working to help more pregnant people cover the cost of their care.

Kay told Vox the Abortion Coalition for Telemedicine is working on a project dedicated to funding abortion pills for those who can’t afford to pay, something the organization hopes to launch in early 2024.

Moore said leaders need to do more to support women in the two or three days after they take the abortion drugs. “Medication abortion can be an ongoing process for 24 to 48 hours, and we can get people their pills really quickly but helping them manage the process does require more time and investment,” she said. “To be honest, I think we’re still building out the infrastructure for that part of the care.”

Even as activists work to expand access, anti-abortion lawmakers plan to continue their efforts to restrict access to medication abortion, including by exploring new strategies banning website visits to Aid Access and Plan C and making health care providers newly liable for disposing of aborted fetal tissue. Some lawmakers want to test the limits of their extraterritorial powers, and are exploring how they might retaliate against providers in other states, even those operating under shield laws.

Despite these threats, the odds of shutting down all these avenues for abortion medication is low, and the bigger challenge is really helping more people learn about their evolving options. Sometimes that means activists battling big tech platforms over what abortion-related content they’re censoring, and sometimes it means media outlets doing a better job of conveying new information to the public.

Northcraft, of Reproductive Health Initiative for Telehealth Equity and Solutions, added that while telehealth can alleviate many of the expenses associated with getting an abortion — such as travel costs, taking time off work, and lining up child care — there is still more work needed to ensure equity, like ensuring that platforms and providers communicate in multiple languages.

“At the end of the day medication abortion is safe, effective, and what people want,” Kay said. “And it’s going to be available by licensed medical professionals, by people who are mission-driven but not medically certified, or through a for-profit thing on the world wide web. We know it’s not going away.”

Cities are asking the Supreme Court for more power to clear homeless encampments

Originally published at Vox on October 10, 2023.
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In 2018, a federal court issued a consequential decision about homelessness in America: People without housing can’t be punished for sleeping or camping outside on public property if there are no adequate shelter alternatives available.

The Ninth Circuit’s decision, Martin v. Boise, said that punishing homeless people with no other place to go would violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Ever since, cities and states have struggled to comply with it, crafting convoluted policies like a new camping ban in Portland, Oregon that prohibits homeless camping during the hours of 8 am to 8 pm.

As municipal backlash to Martin grew, so has the nation’s homelessness crisis, especially in the nine Western states under the Ninth Circuit’s jurisdiction, where some 42 percent of the country’s homeless population now lives.

The Supreme Court declined to hear Martin in 2019. But they now could reconsider the decision. A petition was filed in late August concerning a similar case in Grants Pass, Oregon, a city of 38,000 people. In 2022, the Ninth Circuit decided it would be unconstitutional for Grants Pass to fine homeless people sleeping on public property if there was nowhere else for them to go. The city is challenging that decision.

The Supreme Court hasn’t indicated whether it will hear this significant case, a step it will likely take at the end of this year or early next. Supporters of the Martin decision say there’s no reason the high court should take up the request, as there’s no clear disagreement among circuit courts to resolve. In the half-decade since Martin came down, there have been dozens of cases affirming it, including in the Fourth Circuit in Virginia, and federal lower courts in Ohio, Missouri, Florida, Texas, New York, and Hawaii.

But a bipartisan coalition of cities and states is pressuring the Supreme Court to intervene. In the last month, dozens of local governments have filed briefs pleading with the court to reconsider Martin, including liberal cities like Los Angeles, Honolulu, and Seattle.

Some in the court system have also signaled they’d like to see the case overruled. This summer, when the full Ninth Circuit declined to review the Grants Pass v. Johnson decision issued by a three-judge panel in 2022, 16 judges dissented, arguing both cases were incorrectly decided. “Martin handcuffed local jurisdictions as they tried to respond to the homelessness crisis; Grants Pass now places them in a straitjacket,” one dissent read. A state judge in Arizona also recently urged the Supreme Court to take up the matter, arguing Martin and Grants Pass both “tie the hands of cities that seek in good faith to address the growing homeless encampment epidemic.”

California’s Democratic Gov. Gavin Newsom also filed a brief in August urging the Supreme Court to reconsider the cases. While Newsom insisted he is not objecting to the “narrow” Martin decision that people experiencing homelessness should not be criminalized for sleeping outside when they have nowhere else to go, the governor argued cities need more clarity on implementation, and that lower courts have interpreted Martin too broadly.

Despite Newsom saying that he’s not seeking to overturn Martin wholesale, homeless advocates say this is naive at best, since that’s what the lawyers representing Grant Pass are asking to do.

“Newsom and the other briefs that aren’t asking for a full overturn of Martin — just clarity around some of these restrictions — are fooling themselves, perhaps willfully so, and are being willfully ignorant of the consequences of their involvement,” Eric Tars, the legal director for the National Homelessness Law Center, told Vox. “The petitioners in this case are asking for a full overturn, that’s the question they have presented to the Court and that’s what they’ll be arguing for.”

Theane Evangelis, a Gibson Dunn attorney and lead counsel for the city of Grants Pass, told Vox they do believe Martin and Grants Pass are “legally wrong” and “are hopeful the Supreme Court will grant review and undo these harmful decisions.”

The Grants Pass v. Johnson case is about whether it violates the Eighth Amendment to fine or arrest unhoused people

Five years ago, about six weeks after the Martin decision was decided, three homeless individuals filed a federal class-action lawsuit against Grants Pass, Oregon, arguing that the city’s laws and customs — like its anti-camping ordinance — punished them for their status of being involuntarily homeless.

The lead plaintiff was Debra Blake, who had been experiencing homelessness for about a decade and was continually racking up hundreds of dollars in fines and fees for sleeping outside and allegedly trespassing. By 2020, Blake owed over $5,000 in penalties for living outside. In their lawsuit, attorneys representing the plaintiffs noted the dearth of affordable housing and homeless shelters in the city, and blasted Grants Pass’s arguments that unhoused people could simply leave and go elsewhere. Blake died a year later at 62, and so the case was renamed for another homeless plaintiff, Gloria Johnson.

In 2022, a three-judge panel from the Ninth Circuit ruled in favor of the homeless plaintiffs.

Opponents of the decision argued Grants Pass marked a radical expansion of Martin, since the Oregon city had issued civil penalties to unhoused people, not criminal ones. Some also alleged that Grants Pass created even further confusion for local governments, since the Ninth Circuit held that a Christian homeless shelter that had strict rules like mandatory church attendance could not be counted as available shelter in Grants Pass due to potential violations of the First Amendment’s Establishment Clause. Many cities have only religious shelters or rely heavily on them.

Supporters of the Grants Pass ruling say it neither expanded Martin nor created confusion. “I see it as a clarification of Martin,” said Tars, of the National Homelessness Law Center, saying that Grants Pass clarifies “that you have to look at the collective impact of all these different ordinances — including anti-sleeping bans or rules barring being in parks after dark — that can make it illegal to exist basically anywhere in public even if they have no other place to do so.”

Ed Johnson, the director of litigation at the Oregon Law Center and the lead attorney representing the homeless plaintiffs in Grant Pass, told Vox that the decision is being greatly mischaracterized by opponents. “The opinion is exceedingly narrow and puts no limits whatsoever on a city’s ability to prevent permanent or even established encampments,” he said.

So is it a violation of the Eighth Amendment to issue tickets and fines against people experiencing homelessness?

Lawyers representing Grant Pass say no, emphasizing that enforcing local regulations should not be considered cruel and unusual punishments.

“I think the entire idea that it could constitute cruel and unusual punishment to arrest someone for sleeping on the street is incorrect,” added Timothy Sandefur, the vice president for legal affairs at the Goldwater Institute, a conservative legal advocacy group that filed a brief urging the Supreme Court to take the case. Sandefur told Vox that “it’s true” that arresting someone for a status like being homeless is wrong, but he argued it would be at most a violation of due process, not of the Eighth Amendment.

Homeless advocates in support of Martin and Grants Pass say ticketing, fining, and arresting unhoused people if they have nowhere else to go is indeed a violation of the Eighth Amendment. In a brief filed to the Ninth Circuit in support of the unhoused plaintiffs, lawyers with the Fines and Fees Justice Center argued that civil penalties frequently trap unhoused people in cycles of poverty and homelessness, ensnaring them in debt that prevents them from securing housing at all.

And given the insufficient number of shelter beds, the practical outcome of rules barring rest under a blanket on any publicly owned property or rest in a car overnight in a public park parking lot “effectively function[s] as a city-wide prohibition of homelessness” that “punish[es] their very existence.”

Overturning Martin and Grants Pass could have implications for forced treatment

As public frustration with tent encampments has grown, a movement urging a “get tough” approach has emerged, arguing that the costs of allowing tent cities to proliferate are too steep and that waiting for cities to build enough new housing before acting is unacceptable. Some argue that public officials have grown complacent with the homelessness crisis, and rely on Martin as an excuse to maintain the status quo.

In efforts to both crack down on encampments but comply with the Ninth Circuit decisions, some cities and states have pushed more punitive legislation, like bills to make camping a felony, or criminalize sleeping outdoors on public property except within designated areas. The question of whether these laws are constitutional under Martin remains an open question. Leaders recognize they probably can’t ban camping everywhere given the court rulings, but they’ve been looking to see if they can ban it in most places instead. If Martin was overturned by the Supreme Court, however, officials would likely feel much more empowered to resume city-wide anti-camping bans and prosecute those who violate them.

Tars, of the National Homelessness Law Center, said the major difference between now and five years ago is the emergence of a “concrete, well-funded movement” to criminalize homelessness, rather than a patchwork of local regulations decided by individual cities and towns. “Today there are groups actively working together, producing media, going on Fox News, to proactively push criminalization,” he told Vox. “That didn’t exist prior to Martin v. Boise.”

In a Supreme Court brief filed by the California State Sheriffs’ Association and the California Police Chiefs Association, the groups wrote “they, by no means, argue for the criminalization of the homeless” and are committed to “improving the outcomes” for unhoused people. Still, they said the “disastrous” decisions “impermissibly intrude” on their policing duties, and make it “all but impossible” to curb dangers associated with encampments.

If Martin and Grants Pass are overturned, it will not only have implications for clearing tents, but likely also for sending homeless people to substance use or psychiatric treatment programs.

In several of the briefs submitted by local governments, cities reported examples of homeless people “refusing help,” and as Vox has previously reported, the question of what to do with those who turn down offers of shelter has gotten entangled with broader, ongoing debates about involuntary treatment. As pressure to clear encampments mounts, many homeless advocates fear that new laws mandating treatment will be indiscriminately applied to those sleeping outside, and even more so if Martin and Grants Pass no longer provide a check on local governments’ behavior.

Some of the briefs filed to the Supreme Court in support of reconsidering Martin have already raised this issue. “Allowing people to live on the streets or in tents in a park is not a compassionate response to the problem,” wrote Sandefur in the Goldwater Institute’s amicus filing. “A compassionate response would consist of providing people with the care they need — including taking them into custody against their will if they are incapable of managing themselves.”

Asked about the connection between encampments and involuntary care, Sandefur told Vox these cases show that cities “are going to have to find a better solution than what they’ve been doing, which is largely ignoring the problem and hoping it goes away.”

Conservatives Are Nudging The Supreme Court to Dismantle Affordable Housing Policies

Originally published in The Intercept on June 25, 2019.
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WHEN IT COMES to conservatives and the U.S. Supreme Court, abortion and labor rights are often considered among their prime targets. Brett Kavanaugh’s ascension to the court last fall, though, opened the road for a host of other challenges for which conservatives have quietly been laying the groundwork for years. This month, the Pacific Legal Foundation, a conservative law firm based in California, made moves on one of those fronts, asking the Supreme Court to take up a case challenging the constitutionality of inclusionary zoning — a popular tool cities and states employ to increase affordable housing and promote residential integration.

Inclusionary zoning generally works by requiring real estate developers to reserve a certain number of units in new housing complexes for tenants who live on more modest incomes; some jurisdictions also allow developers to alternatively pay a fee so the city can construct more affordable housing elsewhere. Conservatives argue that the policy effectively violates a provision of the Fifth Amendment that says private property cannot be taken without just compensation.

This is the Pacific Legal Foundation’s third attempt to bring an inclusionary zoning challenge before the Supreme Court. Its previous efforts, in 2015 and 2017, were both dismissed, but legal experts say that with Kavanaugh now seated on the high court, it is more likely the case will find an audience — and be resolved in favor of conservatives.

The law firm is representing an elderly couple — Dart and Esther Cherk — in Marin County, California, who wanted to divide their 2.79 acres of land into two developable lots. They hoped to sell half of their land to supplement their retirement. In 2000, they applied for a permit, and in the time it took to get their permit, the local law changed such that the couple now had to pay Marin County $40,000 as an affordable housing fee to proceed. They paid, but then demanded a refund, calling the payment unconstitutional.

“Rather than respect property rights and allow a free market in land use, Marin County (and other California cities) have concocted counterproductive ‘affordable housing’ programs by which they collect fees from people like the Cherks (who are actually trying to create new building lots) and stuff it into government coffers for government programs that will allegedly make housing more ‘affordable,’” wrote Larry Salzman, a Pacific Legal Foundation attorney leading the case.

Inclusionary zoning is a land-use policy, first developed in Montgomery County, Maryland, in the 1970s, as a way to foster mixed-income communities. Since it was enacted, the inclusionary zoning policy in Montgomery County has been used to build more than 11,000 new affordable units. By the end of 2016, according to Grounded Solutions Network, 886 jurisdictions in 25 states and Washington, D.C., had also adopted inclusionary zoning policies. And it’s still spreading: This past spring, the New Orleans City Council passed a mandatory inclusionary zoning law to boost affordable housing in the city’s most desirable neighborhoods.

Some real estate developers and economists bemoan inclusionary zoning, arguing that it actually decreases housing affordability by making it more expensive to build market-rate units. This is a concern leaders take seriously, especially in places like California, which is grappling with soaring housing costs driven largely by a scarcity of available units. Still, other experts say that fear is overblown, or can be mitigated with careful program design.

THAT THE PACIFIC Legal Foundation is trying to eliminate a legal tool used by policymakers to promote residential diversity comes as little surprise to those in the civil rights community. The Pacific Legal Foundation has challenged a host of liberal policy ideas in court, including affirmative action, the Voting Rights Act, bilingual education, and school integration.

Their case, as Salzman explains, is built on the idea that Marin County’s inclusionary zoning program violates Supreme Court precedent that protects property owners from being forced to pay extortionate permit fees. Since the couple splitting their lot wouldn’t be exacerbating the local affordable housing crisis — and arguably would be helping to ameliorate it since they’d be increasing supply in an area that desperately needs more housing — “they can’t lawfully be charged a fat fee to solve the region’s so-called ‘affordable housing’ problem,” argues Salzman.

Thomas Silverstein, a fair housing attorney at the Lawyers’ Committee for Civil Rights Under Law, said it’s likely the Supreme Court will eventually take up an inclusionary zoning case, even if not this one. “It seems it’s just part of Pacific Legal Foundation’s agenda to be consistently developing a pipeline of potential challenges, bringing them up and bringing them up, and hoping one day they’ll crack through,” he said.

In 2015, Justice Clarence Thomas signaled his interest in taking up a future inclusionary zoning case, writing a concurrence that stated the inclusionary zoning case they were denying to review “implicates an important and unsettled issue under the Takings Clause.” Kavanaugh’s record on property rights and the Takings Clause is more limited, in part because he was previously on the bench at the D.C. Circuit, where those kinds of cases came up far less often. Still, his notorious record on civil rights was flagged by the NAACP Legal Defense and Educational Fund at the time of his nomination. Last summer they warned that confirming him to the Supreme Court “would threaten the government’s ability to use race to promote diversity and halt discrimination.”

This is the final week of the Supreme Court’s current session, and the court won’t decide whether to hear the zoning case until it reconvenes in the fall. The court’s decision could rest on whether it finds the facts of the case to be representative of questions around inclusionary zoning writ large, Silverstein noted. On the one hand, the Pacific Legal Foundation picked a case with a relatively sympathetic set of plaintiffs; it’s not some rich real estate developer building a high-rise tower but rather a couple looking to retire who would not be hurting Marin County’s affordable housing crisis by splitting up their land. “I think the flip side of this is, you could also imagine the court looking at these facts and saying this is a really unique situation, and if we’re going to take up the issue of whether inclusionary zoning is constitutional, it makes more sense to do it when the facts in front of us are more typical,” Silverstein said.

A KEY CONSTITUTIONAL question for the court, Silverstein said, will be whether inclusionary zoning amounts to a constitutional regulation of how property is used or an unconstitutional taking of property from a property owner. Another question will be whether past legal precedent applies to legislative ordinances, as opposed to ad hoc or administrative decisions. The three big Supreme Court cases that the Pacific Legal Foundation is basing its new argument on — Dolan v. City of Tigard, Nollan v. California Coastal Commission, and Koontz v. St. Johns River Water Management District — were all centered on administrative decisions.

In the 5-4 Koontz decision authored by Justice Samuel Alito in 2013, the U.S Supreme Court ruled that a water management district in Florida had imposed illegal conditions on an entrepreneur’s application to build a shopping center. The proposed shopping center was to be located on a swath of wetlands, and the water management district said the entrepreneur could either reduce the size of his project or spend money on wetlands restoration efforts to mitigate the project’s environmental impacts. The entrepreneur refused, calling the conditions unreasonable, and the Supreme Court agreed.

In the dissent, Justice Elena Kagan objected to the idea that a requirement to pay money to repair public wetlands amounts to a taking of private property, and noted that the court has already held that taxes do not amount to a violation of the Fifth Amendment. “Once the majority decides that a simple demand to pay money—the sort of thing often viewed as a tax—can count as an impermissible ‘exaction,’ how is anyone to tell the two apart?” she wrote. “In short, the District never made a demand or set a condition—not to cede an identifiable property interest, not to undertake a particular mitigation project, not even to write a check to the government. Instead, the District suggested to Koontz several non-exclusive ways to make his applications conform to state law. The District’s only hard-and-fast requirement was that Koontz do something—anything—to satisfy the relevant permitting criteria.”

Pacific Legal Foundation appears to be modeling its legal argument around the decision in Koontz. The group “has been very careful to frame their cases around a fee; they want it to seem as much like Koontz as possible, where it’s considered an unconstitutional fee from the start,” said Silverstein. “But if you say instead that there’s a requirement to provide affordable housing, and if you don’t want to provide affordable housing, you can get out of that obligation by paying a fee, that makes their case look much less like Koontz and more like a land-use regulation that might be permitted under Euclid v. Ambler, which effectively upheld zoning. If a fee is seen instead as an opt-out, it’s almost like you’re doing a nice thing for the property owner.”

Even as conservatives have raised constitutional challenges to inclusionary zoning in recent years, cities and states have not held back on moving forward with inclusionary zoning out of fear of their laws being struck down on the federal level. A Supreme Court dismissal of the new petition would reinforce the message that the proactive steps many jurisdictions have already taken to use inclusionary zoning are lawful and legitimate. Alternatively, if the court did take up the case and ruled in Marin County’s favor, that would also send a strong signal that jurisdictions can continue to pass inclusionary zoning mandates.

“The problem,” said Silverstein, “is we have a Supreme Court that is very skewed toward the petitioners in this case, and there’s a real risk they would decide the case the other way and upset the applecart.”

What The Texas Ruling Means for Fair Housing

Originally published in Next City on September 9, 2016.
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Fair housing advocates scored a major victory in 2015 when the Supreme Court upheld the so-called “disparate impact” standard, a legal theory that says individuals can allege housing discrimination under the federal Fair Housing Act without having to prove that someone intentionally sought to discriminate. The Inclusive Communities Project (ICP), a Dallas-based nonprofit, had argued in court that the Texas Department of Housing awarded its low-income housing tax credits in a way that perpetuated segregation, concentrating affordable housing in black neighborhoods with high poverty.

Lost amid the excitement of the nation’s highest court reiterating the aims of the Fair Housing Act, a law passed in 1968 that bars housing discrimination and requires recipients of federal funds to promote housing integration, was that ICP’s original case got sent back to a lower court for review. Two weeks ago, a district judge in Texas issued a new ruling for this case, finding that ICP failed to prove housing discrimination under the disparate impact theory. Their case has been dismissed, and they have not yet decided if they’ll appeal.

Fair housing disparate impact cases are fairly rare, and also hard to win. Stacy Seicshnaydre, a professor at Tulane University Law School, has analyzed the history of disparate impact claims brought under the Fair Housing Act. She found that plaintiffs were successful in only 20 percent of their cases on appeal, a notably low rate.

Seicshnaydre says that disparate impact cases under the Fair Housing Act are just generally more expensive and difficult, compared to other kinds of suits. They tend to require more outside expertise, for example, since one has to include a statistical analysis demonstrating there have been disparities.

“A Supreme Court decision eliminating the disparate impact theory would have been a huge setback,” says Seicshnaydre. “The fact that the district court decided the ICP didn’t prove its case is disappointing, but it doesn’t have the same impact that a Supreme Court decision would have had. Disparate impact theory is still recognized as a good theory, so I think that’s still an incredibly favorable result for the fair housing movement.”

Indeed, the past year and a half has brought about a host of additional gains for integration advocates. Just before the Supreme Court released its decision in 2015, Harvard economists Raj Chetty, Nathaniel Hendren and Lawrence Katz released a study illustrating the connections between one’s geography and economic mobility. The researchers analyzed which counties were the worst for facilitating upward mobility, demonstrating how opportunity is significantly impacted by where a person grows up. Research released this spring by Eric Chyn, an economist at the University of Michigan, found additional evidence to support the idea that moving poor children into higher-opportunity neighborhoods carries long-term benefits for them as adults.

The federal government has also stepped up its efforts to promote fair housing. Following the Supreme Court decision, HUD released a new federal rule to provide communities with the supports they need to meet their fair housing obligations. They have since pushed for historic fair housing settlements in places like Maryland and Minnesota, emphasizing the need to affirmatively integrate housing under the Fair Housing Act.

“These efforts and events are having an impact. They’re encouraging, and sometimes forcing, communities to grapple with difficult, entrenched issues that were decades in the making,” says Diane Yentel, president and CEO of the National Low Income Housing Coalition. “Much more scrutiny is being given to where and how affordable housing is developed.”

There have also been notable improvements in Texas since ICP first brought its original suit. The state agency revised its process for allocating housing tax credits, now offering greater rewards to developers seeking to build in higher-income areas. Some recalcitrant towns have presented challenges, but in Dallas, a housing committee on the city council has been working on a plan to expand affordable housing units throughout the city, as part of a major effort to write the city’s first-ever housing policy. The Dallas Morning News editorial board recently praised these efforts to create more mixed-income neighborhoods, saying this carries “the potential to make Dallas a more equitable city for all of its residents.” The committee’s proposals should head to the full city council as soon as next month.

Ultimately, to achieve fair housing, Yentel says we’ll need greater investment in programs like the National Housing Trust Fund and Section 8 vouchers, in order to expand access to affordable housing, while also revitalizing distressed areas. “Realizing fair housing means providing low-income people with genuine choices about where to live,” she says. “And that requires that we work towards making every community one of opportunity.”

The National Labor Relations Board Says Charter School Teachers Are Private Employees

Originally published in The American Prospect on September 8, 2016
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The National Labor Relations Board issued a pair of decisions in late August, which ruled that teachers at charter schools are private employees, therefore falling under the NLRB’s jurisdiction. The cases centered on two schools with teachers vying for union representation: PA Virtual Charter School, a statewide cyber charter in Pennsylvania, and Hyde Leadership Charter School, located in Brooklyn. In both cases, the NLRB concluded that the charters were “private corporation[s] whose governing board members are privately appointed and removed,” and were neither “created directly by the state” nor “administered by individuals who are responsible to public officials or the general electorate.” The NLRB determined that a charter’s relationship to the state resembled that of a government contractor, as governments provide the funding but do not originate or control the schools.

For Donna Novicki, a seventh grade science teacher at PA Virtual, the NLRB’s decision signaled that her long wait for a union had finally neared its end. Novicki and her colleagues voted to unionize in March of 2015, but her school challenged the NLRB’s jurisdiction, and the case has been under the board’s review ever since. The votes, which were impounded after PA Virtual challenged the election, were finally counted yesterday, and the teachers voted for unionization by a 57-to-15 margin.

Novicki has been teaching for 17 years, in both charters and traditional brick-and-mortar schools. This marks her 12th year at PA Virtual. “The teachers at PA Virtual are an amazingly dedicated force,” she says. “But we work longer hours, we work more days, we carry greater student case-loads, and after all that, we get paid less than our traditional counterparts. We’re hoping for a union to better meet that compromise with the end goal of greater student success.”

The NLRB’s decisions came amidst fierce ongoing debates over whether charters are truly public schools, or tools to privatize education. Unions and charter critics say charters are happy to be “public” when it affords them state and federal dollars, but claim they are private when seeking to hide from public oversight, or to opt out of rules applicable to those in the public sector. Advocates defend charters as public schools, saying they are open to all students, free to attend, and funded by taxpayers.

To understand the significance of these recent NLRB decisions, one has to go back a few years.

In 2010, charter teachers at the Chicago Mathematics & Science Academy (CMSA) filed for union representation with the Illinois Educational Labor Relations Board. CMSA responded by saying its teachers fell under the purview of the NLRB, because their school was a privately incorporated nonprofit, governed by a corporate board. While the regional NLRB director initially dismissed CSMA’s challenge, the national labor board agreed to review the case. The National Alliance of Public Charter Schools, the most prominent national charter advocacy organization, filed an amicus brief in support of CSMA’s position, arguing that “charter schools are intended to be and usually are run by corporate entities that are administered independently from the state and local governments in which they operate.”

In a 1971 Supreme Court case, NLRB v. Natural Gas Utility District of Hawkins County, the justices deemed Hawkins County a “political subdivision”—and therefore public—by looking to see if it was created directly by the state, or administered by individuals who are responsible to public officials or the general electorate. The NLRB applied this same “Hawkins test” to the CMSA charter, and concluded in 2012 that CMSA was not a political subdivision, and thus private. While advocates sometimes say that charters’ public nature is evidenced in part by their need to comply with various laws and regulations enacted by public officials, the NLRB concluded that most government contractors are “subject to exacting oversight in the form of statutes, regulations, and agreements.”

Since 2012, the landscape has remained fairly murky for charter teachers looking to organize; charter operators have challenged the jurisdiction of both public labor boards and the NLRB, depending on which their staff is petitioning for the right to unionize.

In April 2014, teachers at the Pennsylvania Cyber Charter School—a different, but similarly named virtual charter—voted for union representation. (This school has gained notoriety because its founder and former CEO was accused and finally pleaded guilty to $8 million in tax fraud.) While Pennsylvania Cyber challenged its staff’s attempt to unionize with the NLRB, the regional director dismissed management’s challenge, citing the 2012 CMSA case as precedent.

Two months later, though, the U.S. Supreme Court issued a ruling in National Labor Relations Board v. Noel Canning, saying that President Obama’s recess appointments of three members of the NLRB were unconstitutional. This ruling called into question hundreds of decisions the labor board had recently made, including their 2012 decision related to charter school employees.

A year later, when Novicki and her PA Virtual colleagues voted for union representation, the NLRB decided not to dismiss the employer’s challenge, as it had dismissed the Pennsylvania Cyber Charter School’s challenge in 2014. In New York City, another charter case was also being reviewed; this time the teachers had tried to unionize with New York’s public labor board, and their employer, Hyde Leadership Charter School, argued that the teachers should be covered under private labor law instead. With the board’s ruling in CMSA undercut by the Court’s decision in Noel Canning, the board was returning to the question of the status of charter schools.

“The NLRB really took its time on Hyde,” says Shaun Richman, a campaign consultant who writes on labor issues, and the director of the AFT’s charter organizing program from 2010-2015. “I think that’s because the Chicago Mathematics & Science Academy precedent was vulnerable to procedural challenges and they wanted to be very clear about how they are going to rule on most charter cases. As an organizer that clarity is helpful.”

The New York teachers union fought against classifying educators as private employees, but as organizing charter schools continues to grow as a priority, the NLRB’s recent decisions offer unions some advantages. In recent years, states with anti-union Republican legislators, like Wisconsin, have significantly weakened the power of public-sector workers to collectively bargain. Under federal labor law, as long as a Democrat remains in the White House, a teacher’s right to organize is more likely to be protected.

Richman says he loves the recent NLRB decisions because they force people to ask tough questions. “Charter schools were designed to be public but at a very fundamental level they are not public,” he says. “There are very critical errors in the way the laws are designed. They decided to make these things be nonprofit corporations, and almost all the problems with charter schools flow from that essential, unnecessary decision. You want a school with autonomy over its pedagogy and hiring? There’s no reason to make it a separate corporation.”

Going forward, challenges to charter unions are likely to be resolved faster for two reasons: There are now additional NLRB precedents, meaning there is less ambiguity as to how charter teachers should be classified. (Employers can still challenge the NLRB’s jurisdiction at any point during the election process, but there’s a greater likelihood that their claims will now be dismissed.) And in April of 2015, the NLRB adopted new rules to expedite the time it takes to hold an election, while also reducing the number of ways an employer could challenge a union effort. Teachers at both Hyde and PA Virtual had voted for union representation prior to these rules going into effect, but teachers seeking unionization in future campaigns may look forward to having an easier time of it.

Q&A: The Abortion Battle’s Next Phase

Originally published in The American Prospect on July 12, 2016.
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In a landmark ruling last month, the Supreme Court struck down a package of Texas abortion restrictions known as Targeted Regulation of Abortion Providers (TRAP) laws. Such laws, which have proliferated around the country, typically restrict abortion access by imposing rigid and expensive hospital-style mandates on clinics. The Court’s ruling in the case, known as Whole Woman’s Health v. Hellerstedt, found that the restrictive Texas TRAP laws were unconstitutional because they placed an “undue burden” on women, and marked a major victory for the reproductive rights movement. The American Prospect’s Rachel Cohen spoke with Ilyse Hogue, the president of NARAL Pro-Choice America, which helped lead the challenge to the Texas TRAP laws, to ask about the ruling’s implications for abortion access and for the upcoming election. This is an edited transcript of that conversation.

Rachel Cohen: Now that the Supreme Court has struck down TRAP laws, what’s next on the agenda for anti-choice opponents?

Ilyse Hogue: Over the years, [abortion opponents] have realized that honesty can only get them so far in terms of achieving their goal of ending legal abortion. TRAP laws were really a way to deceive the public, cloaking their efforts around the idea of protecting women’s health. The Supreme Court just eviscerated the anti-choice posturing that TRAP laws are in any way about women’s health.

So one of their favorite tools just got taken away from them. They are reeling, but they are not the type to take their ball and go home. We’re anticipating them pushing forward on a number of different fronts. I think they will step up their harassment at clinics—harassing patients and doctors. And we’ve seen some really insidious things from state legislatures, like recently an effort in Missouri to force clinics to turn over their private medical records to the state. I think we’re going to see anti-choice opponents continue to pour resources into crisis pregnancy centers, which are just another way to deceive women.

How will the reproductive rights movement respond?

We are pushing back on their crisis pregnancy center efforts. In California last year, legislators passed the Reproductive FACT Act, which sets a national model for requiring all crisis pregnancy centers to be really clear with their patients about what they do and don’t do. Other states are looking at California’s law, and I think it’s very much at the top of legislators’ minds for the beginning of 2017.

We’ve also seen states where pro-choice legislators are filing to appeal TRAP laws that are already on the books, like Daylin Leach, a Democratic state senator, in Pennsylvania. And we’re working as a movement to step up litigation and public education to repeal the rest of those laws around the country. Importantly, we’re really moving to a position where we will not just fight anti-choice lies and deception, but where we can actively push for legislation that expands access to abortion. For example, a number of states are looking at medical abortion, and allowing nurse practitioners to provide abortion services. California already has that and other states are looking at it.

On top of this, we’ve got two pieces of federal legislation that are picking up momentum. The Women’s Health Protection Act, which would enforce and protect the right of a woman to decide for herself whether to continue or end a pregnancy, and the Equal Access to Abortion Coverage in Health Insurance Woman Act, which would repeal the Hyde Amendment and ensure that abortion services could be covered under federal health insurance.

NARAL recently released a statement calling the Democratic Party platform “the strongest platform for reproductive freedom we have ever seen.” What’s so significant about it?

The platform is a symbolic statement of values, as well as a navigation tool for what kinds of legislative and public policy remedies there are for the issues that we face. So the fact that it explicitly calls for the repeal of the Hyde Amendment, as well as the Helms Amendment, [which restricts U.S. foreign aid from paying for abortion services] is huge. It acknowledges that there have been discriminatory practices both here and abroad against women who want to control our own reproductive destiny.

The reproductive justice movement deserves an enormous amount of credit for getting us here. Reproductive freedom in the 21st century is acknowledging that we are whole beings. There is not one group of women who gets abortions, and others who go on to be parents. We are just the same women at different times in our lives, making the decisions that are best for us and our families. That the platform takes a step towards acknowledging that is a real testament to the economic and reproductive movements that have come together.

How long will it take Texas and the other states with TRAP-style restrictions to restore abortion access to women?

I’m really glad you asked that question. The answer is too long and it varies state by state. Texas is five times the size of other states, so it will take longer there. But what’s important in answering that question is acknowledging that in the minds of the extreme anti-choice minority, this was a scorched-earth strategy. They always knew they could lose at the Supreme Court, but the amount of damage they were able to do in the meantime, in terms of clinics on the ground, in terms of women who could not access services—that’s significant damage that can never be fully undone.

While it’s important to win, we can’t actually let them gain such ground in the future. We can’t just depend on Supreme Court strategies when it comes to ensuring women access to our basic rights.

That brings us to the election. What role do you expect abortion and reproductive health to play in state and federal races?

We have to be very focused, not only on getting our champion into the White House, but on the down-ballot races, because the harm is coming disproportionately from state legislatures.

We’ve been doing a lot to hold incumbents accountable for the unbelievable amount of times they’ve tried to restrict access to abortion. Their constituents did not elect them to do that, especially at the expense of all the important business that has not gotten done. In both the federal election and for local and state races, we’re making sure voters have the information to hold their officials accountable.

This is a long-term project. We’ve got to make gains in 2016, and come 2020 and 2022, I think we’re going to start seeing some of these state legislatures really shifting on these issues.

In the 2012 election, Todd Akin, a Republican candidate from Missouri lost his race, in large part because of his outrageous comments about “legitimate rape.” Are we seeing similar types of remarks from Republicans this year?

I think people have been trained to be more careful, because when they speak their truth they find themselves at odds with the majority of their constituents. These anti-choice candidates don’t want to talk about their position once they get to a general election because they know they’re on the wrong side, and they don’t win elections if they do. We saw that so clearly in 2014 when Scott Walker, three weeks before his Wisconsin election, ran an ad saying he supports legislation to provide women with more information and to leave the final decision to a woman and her doctor. This is coming from a man who had done more to legislate abortion out of existence than every previous governor before him.

But I think what’s changed between 2012 and 2016 is that back then, the pro-choice movement was able to leverage those off-the-cuff Republican statements. But we’re not going to wait for them now. We’re going straight to the voters to remind them about their officials’ records. We did that really recently in New Hampshire with an  ad campaign targeting Republican Senator Kelly Ayotte, reminding her constituents about all the anti-choice work she spent her time working on, when they didn’t want her to.

What about Donald Trump? He went so far as to say that women should be punished for getting abortions, but then quickly walked it back.

Donald Trump is not playing by the anti-choice or the GOP rulebook in any way, and we know that. One thing that’s super important to me from where I sit at NARAL, but also as an American, and as a mom, is just the way he’s giving voice and credibility to deeply-held misogynistic ideas. I think he will do tremendous damage whether he wins or not, because he has given permission to this very dark underbelly that does not represent what we need to be or what we can be. This is especially true when it comes to his misogyny, and his willingness to dehumanize women. I think particularly because he is facing a woman opponent we’re going to see a new wave of misogynistic activists who feel like they have the high ground.

How has Obama been on reproductive rights? NARAL endorsed Hillary Clinton in January. Might Hillary be different from him?

Obama has been a great backstop against the endless assault by the anti-choice majority in Congress. He has vetoed every bill we’ve needed him to veto in no uncertain terms. But what we need now is a leader in the White House who centralizes these ideas about reproductive freedom as human rights, integral to the health and security of women and families in America. That’s not really been the center of his presidency, and I think it will be the center of Hillary Clinton’s.

Future of Abortion Access Remains Unclear After Supreme Court Oral Arguments

Originally published in The American Prospect on March 2nd, 2016.

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A deeply and now evenly divided Supreme Court heard oral arguments on Wednesday in the most consequential reproductive rights lawsuit to come before the high court in nearly 25 years.

The touchstone for the justices, who now number only eight since the death last month of Antonin Scalia, was the standard established by the high court in its 1992 ruling Planned Parenthood v. Casey, which found that abortion restrictions may not place an “undue burden” on women seeking to terminate a pregnancy.

At issue in the current case, known as Whole Woman’s Health v. Hellerstedt, is a package of abortion restrictions passed by the GOP-controlled Texas legislature in 2013. During oral arguments Wednesday, the eight justices seemed divided along predictable ideological lines. The Court’s four conservatives challenged whether the Texas restrictions impose an “undue burden” on women, and its four liberals questioned the medical necessity of the restrictions.

In Casey, the court ruled 5-4 that states may legally pass restrictions on abortion access so long as those restrictions do not create unreasonable obstacles for women who seek to exercise their constitutional right to safely terminate a pregnancy. InHellerstedt, reproductive rights supporters have set out to prove that Texas’s new restrictions indeed violate the standard established under Casey.

The Texas law, known as HB2, requires that all abortion providers in the state obtain admitting privileges at a local hospital, and that clinics meet ambulatory surgical center (ASC) building standards. A key argument from the plaintiffs challenging HB2 is that these requirements have led to the closure of roughly half the state’s abortion clinics.

Chief Justice John Roberts and Justices Samuel Alito and Anthony Kennedy all questioned whether there was sufficient evidence to make that claim. Stephanie Toti, the attorney representing Texas abortion providers, noted that in the five years prior to HB2’s passage, the number of abortion clinics in Texas stayed relatively constant. Once HB2 became law, however, eight clinics closed in anticipation of the restrictions, and 11 closed the day they went into effect.Toti argued that the timing of the closures, as well as testimony from the plaintiffs, provided ample evidence to show that the clinics closed as a result of HB2’s mandates. But the conservative justices seemed unconvinced.

The four liberal justices all pressed Texas Solicitor General Scott Keller on why the admitting privileges and the ASC requirements were medically justified. They pointed out repeatedly that Texas has not required other providers of such outpatient procedures as colonoscopies and liposuction to meet ASC standards, despite the fact that those procedures carry far greater medical risk. (The American College of Obstetricians and Gynecologists and the American Medical Association have also said there is “simply no medical basis to impose a local admitting privilege on abortion providers.”) Moreover, Justice Stephen Breyer noted that even if the Texas legislature thought it was improving women’s health care by putting these standards in place, there’s evidence that women now face more barriers to abortion access, which increases the likelihood for riskier late-stage or self-induced abortions.

Another disagreement centered on whether the few abortion clinics left in Texas are capable of providing service to everyone who needs reproductive care in the state. More than 70,000 women in Texas seek abortions each year, but Alito argued that it’s impossible to know for certain whether there are too few clinics because “we really don’t know” what the capacity is of the existing providers. Donald B. Verrilli Jr., the U.S. solicitor general, disagreed, arguing that it’s “common sense” that just eight, nine, or ten clinics in all of Texas would not be enough to meet the demand.

The case’s outcome rests largely with Kennedy, the justice who originally helped craft the vague “undue burden” standard in 1992’s Casey decision. If Kennedy sides with the state of Texas, that will presumably leave the high court deadlocked 4-4. That would leave in place the Fifth Circuit Court’s decision to uphold HB2. But it would also mean that the Hellerstedt ruling sets no new national precedent. Kennedy also signaled the possibility of sending the case back to the lower court for remand—or further fact-finding—to better determine whether the number of clinics left in Texas can meet the state’s demand for abortion. It’s possible that another version of Hellerstedt will return to the Supreme Court when a successor to Scalia is appointed. The Hellerstedt ruling is expected this summer.

Hundreds of reproductive rights supporters, dressed in purple, and anti-abortion activists, wearing blue, rallied energetically outside the Supreme Court this morning in the cold; holding up signs, chanting songs, and making speeches—at times drowning one another out. Some supporters camped outside the high court Tuesday night, while others arrived early in the morning by bus, from states like North Carolina and Georgia, and cities like Philadelphia and Cleveland.

Obama’s Mixed Record on School Integration

Originally published in The American Prospect on August 31, 2015.
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As Congress debates competing revisions of the No Child Left Behind Act over the next several weeks, lawmakers are unlikely to spend much time looking at the growing problem of segregated schools. Despite strong academic and civic benefits associated with integrated schooling, and a unanimous Supreme Court decision which ruled that “separate educational facilities are inherently unequal”—American public schools have resegregated quickly by race and class over the past two-and-a-half decades.

Many advocates had hoped to see the Obama administration take steps to address rising school segregation, but so far its record has not been great. While the Department of Education has paid lip service to the need to promote integrated schools, and has included modest diversity incentives within a handful of federal grants, it refused to use larger education initiatives like Race to the Top to encourage states and districts to prioritize school diversity. In some cases, the department actually pushed policies that made segregation worse.

The Obama administration came to power at an interesting time for the integration movement. With the help of Reagan-appointed judges and justices, court decisions in the 1990s absolved many local districts from their legal obligations to desegregate schools. Between 1988 and 2006, the number of black students attending majority-white schools dropped by 16 percentage points. Between 2000 and 2008, the number of schools where at least 75 percent of students qualified for free or reduced-meals—a proxy for poverty—jumped from 12 percent to 17 percent.

But many districts were also interested in racial and economic diversity, even if they weren’t legally required to promote it. And so various voluntary integration experiments began cropping up around the country. These new efforts seemed promising but quickly faced legal challenge. In a pivotal 2007 decision, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court rejected voluntarily desegregation plans in Seattle and Louisville, on the basis that their particular student assignment strategies relied too explicitly on race. But the Court did clarify that, under certain conditions, districts can use race-conscious measures to promote diversity. Justice Kennedy even endorsed specific strategies to do so, including magnet schools and interdistrict plans.

The years immediately following the Parents Involved decision sparked confusion, largely thanks to the Bush administration. While the majority of Supreme Court justices said districts could consider race in school assignments, the Bush administration posted a federal guidance that suggested only race-neutral means of pursuing integration would be legal.

In 2009, shortly after President Obama took office, a group of educators, policy advocates, and civil rights leaders came together under the banner of the National Coalition on School Diversity (NCSD) to try and push the new administration to take action.

“Our very first goal was to get the Department of Education to take down the guidance from the Bush administration, which told schools they could not promote racial and economic diversity,” said Phil Tegeler, executive director of the Poverty & Race Research Action Council and NCSD coalition member. Their efforts were ultimately successful. By December 2011, the department posted a new guidance, which affirmed the Supreme Court’s decision and listed various ways school districts could pursue voluntary integration.

Other NCSD efforts met less success. One of their primary objectives has been to get the Obama administration to prioritize school integration within their competitive federal grant programs. While Secretary of Education Arne Duncan has repeatedly said that he supports school diversity and wants to reduce racial isolation, his department has not, for the most part, translated such support into its competitive programs.

Despite NCSD’s urging, the department declined to use its largest grant, the $4 billion Race to the Top initiative, to promote racial diversity. Duncan argued that including incentives for voluntary integration would have been too difficult to get through Congress. He also said that when it comes to successful integration efforts, we can’t “force these kinds of things.”

In 2013, Richard Rothstein, a research associate at the Economic Policy Institute,responded strongly to Duncan’s arguments, pointing out that “no education secretary has been as deft as Arne Duncan in creating incentives—both carrots and sticks—to get states to follow his favored policies that are technically voluntary.” Duncan used incentives to get states to adopt Common Core standards, to promote after-school programs and early childhood education, and even within Race to the Top, incentives were used to encourage states to adopt teacher evaluation systems tied to student test scores. But in the case of school integration, Rothstein noted, suddenly Duncan sings a different tune.

“Only in this area, apparently, does Secretary Duncan believe that progress must be entirely voluntary, unforced by carrots and sticks,” Rothstein wrote. There have been plenty of opportunities to incentivize racial integration, such as rewarding states that prohibit all-white suburbs from excluding poor people through zoning ordinances, or withholding No Child Left Behind waivers from states that allow landlords to discriminate against families using federal housing vouchers. “Adoption of such ‘voluntary’ policies could make a contribution to narrowing the academic achievement gap that is so much a focus of Secretary Duncan’s rhetoric,” Rothstein said.

Despite a frustrating first term, desegregation advocates have seen some progress in the last couple years. The Department of Education recently began to include diversity as a funding priority in several of its smaller grant programs like the preschool development grants and its charter school grants; it also announced that magnet-type integration approaches are eligible for the school improvement grants (SIG) program.

While modest, these changes have led to some important new integration experiments. At the end of 2014, New York’s education commissioner, John King, helped launch a socioeconomic integration pilot program to increase student achievement using newly available federal SIG funds. King has since moved to the Department of Education, where he now serves as Arne Duncan’s senior advisor.

Other advocates have capitalized on the Department of Education’s 2011 guidance. David Tipson, executive director of New York Appleseed, says it was an absolute game-changer for his work in New York City. “Getting that correct interpretation, with some real practical guidance for school districts, I can’t even emphasize how important that was,” Tipson said. “There was a very deliberate effort to misconstrue the 2007 [Supreme Court] decision and put fear into many school officials across the country. Everything we’ve been able to do to promote school integration has come in the wake of getting that new federal guidance in place.” New York Appleseed, along with community stakeholders, sought to design a zoning plan that would help keep a school located within a gentrifying Brooklyn neighborhood integrated. Officials resisted at first, but they eventually relented after advocates presented them with the federal guidance. Thus at the beginning of the 2013-2014 school year, Brooklyn’s P.S. 133 became the first school in Bloomberg’s administration to foster a specific mix of students based on socioeconomic status and English proficiency. At the school’s ribbon-cutting ceremony, the city’s school chancellor said he believed their innovative admissions model could be replicated elsewhere.

While advocates of desegregation are happy to see the administration beginning to prioritize diversity within its grant programs, some feel these gestures are too little, too late.

In a letter sent to Secretary Duncan last July, NCSD noted that while the Department of Education has included preferences for diversity within some grant programs, in practice, the department has “consistently underemphasized” these incentives. Many grants still make no mention of diversity at all, and in cases where they do, officials tend to weigh other competitive priorities far more heavily, rendering the modest diversity incentives ineffective. For example, in one grant, applicants could earn an additional five points if their school was diverse, but applicants could earn twice as many bonus points if their school would serve a high-poverty student population

The only federal education initiative to significantly emphasize integration is the Magnet School Assistance Program (MSAP), a program first launched in 1976. However MSAP has limited impact today due to the small amount of federal funding it receives. Even though charters are far more likely than magnets to exacerbate segregation, the department gave MSAP $91.6 million in 2014, compared to the $248.2 million it gave the Charter Schools Program.

Advocates have not given up. Next month in D.C., the NCSD will be hosting a national two-day conference, bringing together scholars, educators, parents, students, and policymakers to continue, “building the movement for diversity, equity, and inclusion.” John King will be speaking on a panel there about the progress they’ve made, and further challenges they face on the federal level. NCSD hopes that King’s new role at the Department of Education will motivate the government to take integration efforts more seriously. The department’s press secretary, Dorie Nolt, told The American Prospect that “we’ve taken meaningful steps, and we want to do more.”

Yet this administration has fewer than 18 months left. And the next secretary of education could quite easily end even the modest progress that NCSD has fought for. “Promoting voluntary school integration is an area where the department has a lot of leeway to act on its own, in terms of trying to encourage state and local governments to prioritize diversity,” said Tegeler. “But that also means the next department has a lot of leeway to not act.”

With New Protections Tied Up in the Courts, Home Health Care Workers Aren’t Waiting Around

Originally published in The American Prospect on April 3rd, 2015.
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Almost two years after the Obama administration extended historic labor protections to the nation’s 1.79 million home healthcare workers, those new rights remain in limbo. In September 2013, the Department of Labor (DOL) announced plans to amend a longstanding regulation that has excluded them from earning the federal minimum wage, overtime pay, and compensation for travel on the job. For home healthcare workers in the United States—a group that is nearly 90 percent female—this move marked a significant step towards setting a floor of decent labor standards.

But the rule-change, which was set to go into effect on January 1st, now faces a challenge in federal court, and critics say state legislators are using the ongoing litigation as an excuse to avoid implementing the new protections. At the same time, given that most home healthcare workers are paid through Medicaid and Medicare—two underfunded public programs—many also worry that states will respond to the rule-change by curtailing consumers’ access to quality care. Activists across the country are working to pressure their lawmakers to reckon with these new standards and avoid potential calamity.

Four decades ago, Congress decided that home healthcare workers should be classified more like babysitters who provide “companionship,” rather than as workers entitled to basic protections. Nursing home employees, by contrast, are fully covered under the Fair Labor Standards Act (FLSA), despite performing many of the same tasks. As home healthcare has ballooned in recent years, these occupational distinctions have become harder to justify.

According to the Bureau of Labor Statistics, the U.S. will need one million new home healthcare workers by 2022. But the work is draining, the pay is paltry, and turnover is high. When adjusted for inflation, home healthcare workers’ average hourly wages have declined by nearly 6 percent since 2004. In 2013, the average earnings of home healthcare workers totaled just $18,598. 2013 was also the year that the Obama administration decided it was well past time to update FLSA’s policy. Because the DOL has the authority to amend federal regulations, it was able to enact this change without seeking Congress’s approval.

Though the new DOL rule-change would most directly benefit home healthcare workers, it carries implications for all domestic workers, including nannies and housekeepers. “By improving the conditions and protections in one area, you’re broadly boosting the sense that this is dignified work,” says Elly Kugler, an attorney with the National Domestic Workers Alliance, (NDWA) a group representing domestic workers in the United States.

Whether that change will actually be implemented is another question. Last year three industry groups filed a lawsuit against the DOL rule-change, insisting that it would have a “destabilizing impact” on home healthcare and hurt millions of elderly individuals. On December 22, 2014, a D.C. district judge vacated the rule for third-party employers, arguing that the executive branch cannot make such a regulatory change. A few weeks later, the same judge also vacated FLSA’s revised definition of “companionship services.” The DOL filed a challenge in appeals court, and arguments will be heard later this spring. Some suspect this may ultimately make its way to the Supreme Court.

Then, on March 20th, Labor Secretary Tom Perez sent a letter out to all 50 governors, urging them to focus on budgeting the minimum wage and overtime protections now, “to ensure that [they] will prepared if the Department prevails” in appeals court. Across the country, activists are also pressuring their representatives to focus on these issues. Yet many lawmakers are using the litigation as an excuse to avoid reckoning with the thorny budgetary questions. This means workers may not see minimum wage, overtime, and travel pay increases anytime soon.

“In Georgia, we’re seeing that our lawmakers are not talking about these issues,” says Tamieka Atkins, who leads Atlanta’s chapter of NDWA. “They have the attitude that we’re not going to move on this until the lawsuit comes down.” In response, Atkins’ group launched a campaign to lobby lawmakers and health agency commissioners in advance of their next legislative session. They also started a petition—“Governor Deal: All Eyes Are On Georgia”—asking for gubernatorial support towards minimum wage and overtime.

Activists in Texas are also applying pressure to their leaders. In January, domestic workers launched a home healthcare campaign, bringing together consumer groups, disability rights organizations, and labor unions. The following month—for the first time ever—domestic workers traveled to Austin to share their personal stories and lobby state legislators. “It was a really great opportunity because we agitated on different levels,” says Mitzi Ordonez, a domestic worker organizer at the Fe Y Justicia Worker Center in Houston. “What we found is that many of the lawmakers just didn’t know about these [DOL] changes.”

Compared to Texas and Georgia, some states have made greater progress towards implementing the new labor protections. California, which already pays its home healthcare workers minimum wage, allocated new funds for overtime pay in its 2014-2015 budget, and was prepared to pay workers more at the start of 2015. But after learning about the federal lawsuit, California Governor Jerry Brown decided to postpone the overtime pay, even though there is nothing legally obligating him to do so. Frustrated activists have launched a campaign in protest; they organized meetings with state legislators, held rallies and candle light vigils, and even set up a“Justice for Homecare Tribunal”—a mock trial against the state. “The best thing for us to do is to not rest on our laurels,” says Doug Moore, the executive director of the United Domestic Workers of America. “The governor wants this to go through the courts, but we will use pressure to change his position.” Moore says that if the DOL rule-change is upheld in appeals court, they will then move to demand retroactive overtime pay back to January 1st.

Yet for some states that have reckoned with the rule-change, the results haven’t always been encouraging. “What we have been seeing, unfortunately, is that you can equally comply with FLSA by paying overtime and travel time, or by setting caps on the number of working hours,” says Alison Barkoff, the Director of Advocacy at the Bazelon Center for Mental Health Law. This scenario is playing out in states like Arkansas, which is looking to cap homecare workers to just 40 hours per week, and to limit each worker to just one customer per day. In effect, this would enable states to avoid paying workers overtime and travel costs. But such measures will hurt employees who make their living by piecing together multiple part-time jobs. It may also impact consumers who need more than 40 hours of care, or who may have a harder time finding someone willing to work for just a few hours per day.

Some hope that the Americans With Disabilities Act (ADA) and the Olmstead v. L.C. Supreme Court case, both of which protect disabled individuals from discrimination and unjustified segregation, will help consumers fight back against cuts to healthcare services. “The ADA and Olmstead provide important protections to consumers, but they won’t completely prevent a state from implementing restrictive policies,” Barkoff explains. “The laws do not prohibit a state from capping worker hours, so long as the state has a process for exempting individual consumers who will be seriously harmed. Most consumers will have to shift the way their care is provided.”

Meanwhile, labor activists maintain that their interests are not at odds with those of healthcare consumers, because quality care depends on creating sustainable working conditions. Many in the disability community have also signed amicus briefs in support of extending minimum wage, travel time, and overtime protections to home healthcare workers. “I think it’s important to know that there isn’t just one disability rights community,” says Sarah Leberstein, an attorney with the National Employment Law Project. “Many groups are very supportive, but they’re also really concerned about states taking it seriously and implementing the rules in a thoughtful way that doesn’t result in cuts to services.”

Even if upheld, the DOL rule-change may be hard to enforce. In New York City—a place that has instituted a progressive domestic workers’ bill of rights and a paid sick leave policy—activists have learned first-hand how enforcing these types of laws can be quite challenging.

“It’s really hard to be reliant on a complaint-driven process where workers have to come forth, but still fear retaliation,” says Irene Jor, a New York organizer with NDWA. Many domestic workers are also isolated in private homes, without much regular interaction with other workers who might provide them with moral support to raise grievances. Even once complaints are filed, not all are likely to be dealt with. “The Department of Labor, both on the federal and state level, is incredibly underfunded and does not have enough investigators,” says Leberstein. “So often they can’t simply respond quick enough, and they can’t do targeted enforcement.”

Nevertheless, if the DOL rule-change were upheld, it would be an important achievement. Some businesses would certainly have to adjust their operations to accommodate the new labor protections, but supporters of the rule-change insist that the industry’s opposition is overblown. According to national surveys, less than 10 percent of home healthcare workers even report working more than 40 hours a week. “We’ve also got many examples of big home care agencies that have figured out ways to pay workers properly, and still provide good care,” says Leberstein, who points out that many organizations already operate in states that require minimum wage and overtime protections. “So they’ve either figured out a way to do it and still earn profits, or they’re admitting to violating the laws in their state.”

Asking the public to pick between providing quality care and treating workers fairly is ultimately a false choice wrought through a political culture of austerity. States could avoid this by increasing funds towards Medicare and Medicaid, which would help ensure that the disabled and elderly can access the high-quality and flexible care without compromising national labor standards and worker dignity.

Though the future of the law is still unknown, one thing is clear. This is an issue that cannot be put on hold—thousands of health homecare workers live in poverty and 10,000 more baby boomers turn 65 every single day.