Victory in Kentucky Supreme Court!


I am thrilled to let you know that the Kentucky Supreme Court once again refused to advance the war on drugs to women's wombs and made clear that pregnant women, no less than other persons, are protected by the rule of law.

I am thrilled to let you know that the Kentucky Supreme Court once again refused to advance the war on drugs to women’s wombs and made clear that pregnant women, no less than other persons, are protected by the rule of law. By refusing to accept the prosecution’s argument that the “unborn” should be legally disconnected from the pregnant women who carry them and treated as if they were separate legal persons, this decision protects the civil and reproductive rights and health of all women in Kentucky.

In this case, a pregnant woman was prosecuted in flagrant disregard for Kentucky law, embodied in its Maternal Health Act of 1992, and binding Kentucky Supreme Court precedent. NAPW worked extensively with the defendant’s talented public defenders (including Jamesa Drake, who presented a brilliant oral argument) and many treatment, recovery, and health allies in the commonwealth. NAPW, with attorneys Allison Harris of Shearman & Sterling and Kentucky Attorney Michael Goodwin, filed an amicus brief to highlight the negative public health consequences that would arise if drug-using women were to be punished for becoming mothers. Twenty-five public health organizations, advocates, and experts were represented on our brief (see list below) and more than sixty were represented as amici in the case. Today’s opinion reinforces the importance of Kentucky’s public health approach to the issues of drug use and pregnancy, and the fact that prosecutors should not be allowed to legally separate the fetus from the pregnant woman who carries and nurtures it.

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NAPW also worked with international human rights experts and organizations as well as leading bioethicists who filed amicus briefs opposing this misapplication of the criminal law to pregnant women, new mothers, and their children.

Your support enabled NAPW to organize more than 60 organizations (see full list of amicus below) to speak out against the prosecution of pregnant women and punitive policies that undermine the health of pregnant women, mothers, and babies. We hope that you will celebrate this victory that you helped to make possible, and continue to support our work on behalf of women in Kentucky and across the nation.

As always, donating to NAPW is a great way to show your support.

NAPW and our colleagues represented the following groups in the public health amicus brief: the American College of Obstetricians and Gynecologists (ACOG); American Psychiatric Association; National Perinatal Association; Kentucky Coalition for Women’s Substance Abuse Services; Kentucky Psychiatric Medical Association; American Society of Addiction Medicine; Child Welfare Organizing Project; National Association of Social Workers; National Coalition for Child Protection Reform; Northwest Women’s Law Center; National Asian Pacific American Women’s Forum; Pathways, Inc.; Baron Edmond de Rothschild Chemical Dependency Institute of Beth Israel Medical Center; The Drug Policy Alliance; People Advocating Recovery; Sistersong Women of Color Reproductive Health Collective; Our Bodies, Ourselves; The Healing Place Women’s and Children’s Community; Law Students for Reproductive Justice; Fran Belvin, CPAT; Susan Barron, PhD; Susan Boyd, PhD; Stephanie S. Covington, PhD, LCSW; Nancy Day, PhD; Lynn Posze, MA, LPCC; and Carol Stange, MSSW.

Lawrence Nelson and Forrest Roberts filed an amicus brief on behalf of the American Academy of Addiction Psychiatry; Anna C. Mastroianni, JD, MPH; Bryan Hilliard, PhD; C. Ronald Koons, MD, FACP; Cavin P. Leeman, PhD; David Magnus, PhD; Donald Brunnquell, PhD, LP; Elaine Morgan, MD; Glenn McGee, PhD; Global Lawyers and Physicians; Gregory Loeben, PhD; Hilde Lindemann, PhD; Howard Brody, MD, PhD; Howard Minkoff, MD; Inmaculada de Melo-Martin, PhD, MS; Jeffrey Kahn, PhD, MPH; Judith Bernstein, RNC, PHD; Katherine A. Taylor, JD, PhD; Lauren G. McAliley, MSN, MA, CNP; Lois Shepard, JD; Mary Faith Marshall, PhD; Peter J. Cohen, MD, JD; Rebecca Bigoney, MD; Rev. Timonthy A. Torstenson; Robert A. Deweese, MD, MA; Rosamond Rhodes, PhD; Stephen S. Hanson, PhD; Susan K. Palmer, MD; and Timothy F. Murphy, PhD.

Carrie Bettinger-Lopez and Michael Jay O’Hara filed an amicus brief on behalf of the Anti-Sexism Committee of the National Lawyers Guild; Center for Reproductive Rights; Columbia Law School Human Rights Clinic; Columbia Law School Sexuality and Gender Law Clinic; Constitutional Litigation Clinic at Rutgers School of Law, Newark; Criminal Justice Clinic at Hofstra Law School; International Mental Disability Law Refor Project in the Justice Action Center at New York Law School; International Reproductive and Sexual Health Law Programme at the University of Toronto; Jamie O’Connell (University of California, Berkeley School of Law, International Human Rights Clinic); Justice Now; Leitner Center for International Law & Justice at Fordham Law School; Mindy Jane Roseman (Harvard Law School, Human Rights Program); and Southwest Women’s Law Center.

Sheryl Snyder, Amy Cubbage, and Jill Morrison filed an amicus brief on behalf of Legal Momentum and National Women’s Law Center. David Alan Friedman and William Ellis Sharp filed an amicus brief on behalf of the American Civil Liberties Union Foundation Reproductive Freedom Project and American Civil Liberties Union Of Kentucky.

For more updates and articles, you can become a “fan” of NAPW on Facebook or follow me on Twitter.

Roundups Law and Policy

Gavel Drop: Despite Supreme Court Victory, Still Work to Do in Texas

Jessica Mason Pieklo & Imani Gandy

Yes, the U.S. Supreme Court announced a victory for abortion access in Texas—and around the country. But it's going to take time to unravel the effects of anti-choice organizing in the state, where abortion opponents have poured resources into HB 2 and have made it hard for physicians to get abortion-care training.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

The U.S. Supreme Court may have struck down the Texas law that threatened to shut down most of the state’s abortion clinics, but Texas’ hammering away at abortion access has had a deleterious effect on medical training there. Houston Public Media’s Carrie Feibel looks at how it’s becoming more difficult for doctors to be trained in abortion services due to clinic closures.

The Bridge Project and NARAL Pro-Choice America dropped a whopping 123 pages of research about how anti-choicers are using Texas to advance their agenda.

Birth control via app? We live in the future. The New York Times reports that websites and mobile applications provide simpler ways for women to obtain contraception.

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A Columbus, Ohio, Planned Parenthood and other reproductive health centers in the city will get new buffer zones.

David Gans at Balkinization explains that although Fisher v. University of Texas marks the first time that Kennedy has been in favor of an affirmative action policy, his opinion isn’t entirely out of character.

The Pentagon will lift its ban on transgender people serving in the military come July.

Suspended Alabama Supreme Court Justice Roy Moore just won’t go away.

Welp. A creationist is running for a spot on the Washington Supreme Court.

Anti-choice activists in Raleigh, North Carolina, are hoping their push for a change to local zoning regulations will kick out an area abortion clinic.

The New Jersey Supreme Court ruled your boss can’t fire you if you’re getting a divorce.

News Law and Policy

Supreme Court Tie in Dollar General Case ‘Clear Victory’ for Tribal Sovereignty

Nicole Knight

The case, Dollar General v. Mississippi Band of Choctaw Indians, hinged on whether the tribe had the authority to resolve civil lawsuits involving non-members—in this case, a $20 billion company—on Native lands.

A U.S. Supreme Court tie on Thursday represented a win for tribal court authority in a case involving a Dollar General employee accused of molesting a 13-year-old more than a decade ago.

The case, Dollar General v. Mississippi Band of Choctaw Indians, hinged on whether the tribe had the authority to resolve civil lawsuits involving non-members—in this case, a $20 billion company—on Native lands.

Justices deadlocked 4 to 4 in their opinion, leaving in place a federal appellate court decision that rejected Dollar General’s challenge to tribal court jurisdiction.

“It’s a clear victory,” said Mary Kathryn Nagle, counsel to the nonprofit National Indigenous Women’s Resource Center (NIWRC), in an interview with Rewire. NIWRC filed an amicus brief in the case in favor of tribal sovereignty, along with 104 other organizations. “Dollar General spent a lot of time, and lot of money, and a lot of resources attempting to completely eliminate tribal jurisdiction.”

In 2003, Dale Townsend, a Dollar General store manager, allegedly engaged in repeated acts of sexual molestation at the store on a then-13-year-old Choctaw boy, who was placed there by a youth job-training program. The Dollar General store sits on tribal trust lands, agreed to Mississippi Choctaw tribal court jurisdiction regarding its store lease, and operates under a business license issued under Choctaw code.

In 1981, the Court ruled in Montana v. United States that tribal authority extends to non-Natives entering into consensual relationships with a tribe “through commercial dealing, contracts, leases, or other arrangements,” as SCOTUSblog wrote in the case preview.

Dollar General, however, argued the tribal court had no authority. In its appeal, the Tennessee-based corporation invoked a 1978 ruling, Oliphant v. Suquamish Indian Tribe, in which the Supreme Court held that tribal courts lacked judicial power over non-members in criminal cases.

The boy’s case, however, was a civil matter. While the tribe’s attorney general took steps to bar the Dollar General manager from the reservation, the U.S. Attorney did not bring criminal charges against Townsend. The boy’s family is suing Dollar General and the store manager for damages in excess of $2.5 million, a case that can now continue in tribal court.

Advocates had called the closely watched case an “attack on tribal sovereignty.”

“Nowadays, it’s a very good thing when tribal rights and powers are freshly affirmed,” Robert Coulter, executive director of the Indian Law Resource Center, told Rewire in a phone interview Thursday. “Had Justice Scalia been sitting on the Court, this case would have depended on Scalia’s vote. That’s why there was a great deal of concern and anxiety about the outcome of the case.”

The death of conservative Justice Scalia, and Republican gridlock, has left the highest court in the land with only eight justices.

“If Dollar General had been successful … tribal governments would have been stripped of their inherent jurisdiction over the majority of individuals attempting to harm their men, women, and children,” Nagle, counsel for NIWRC, told Rewire.

“In Indian country, our men, women, and children face the highest rates of sexual assault, domestic violence, and murder—higher than any other population in the United States,” she noted. “The U.S. Department of Justice has reported that the majority of these assaults are committed by non-Indians.”

When prosecutors decline to pursue these kinds of crimes, survivors have increasingly turned to civil courts for recourse.  

More than four out of five Native women are subjected to some form of violence, and 56 percent have experienced sexual violence, according to a May 2016 National Institute of Justice Research Report.

Mississippi Choctaw Tribal Chief Phyllis Anderson told the Associated Press that the Supreme Court tie was a positive outcome “not only for our tribe, but for all of Indian country.”


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