Judge Says No to Controversial Arizona Immigration Law

Amie Newman

A federal judge has struck down some of the most controversial aspects of SB1070, the Arizona law which would have supported, according to some, racial profiling and other civil rights abuses. Women's groups have yet to speak up about the blockage of certain provisions.

A federal judge has blocked some of the most controversial parts of SB 1070, the Arizona law passed and signed into law by Gov. Jan Brewer in April of this year. According to NPR:

The overall law will still take effect Thursday, but without the provisions that angered opponents — including sections that required officers to check a person’s immigration status while enforcing other laws.

The judge also put on hold parts of the law that required immigrants to carry their papers at all times, and made it illegal for undocumented workers to solicit employment in public places. In addition, the judge blocked officers from making warrantless arrests of suspected illegal immigrants.

“Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked,” U.S. District Judge Susan Bolton ruled.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Opponents of the law (including Cardinal Mahoney, by the way) have actively protested what they see as the racism and xenophobia inherent in the law; including many women’s organizations (and labor organizations) like the National Coalition for Immigrant Women’s Rights, the National Domestic Workers Alliance, Momsrising.org, the National Latina Institute for Reproductive Health and more who recorded the stories of immigrant women and children in Arizona, protested and testified in front of Congress about the many ways laws like these have unique negative impacts on immigrant women and children. From an earlier post I wrote about this, the stories of women and children living in Arizona make it near impossible to understand how laws like this one are anything more than legalized abuse:

Stories like the one of a nine-year old girl who told delegates she arrived home from school one day to find her parents gone – for three months. Stories of single mothers who say they are now terrified, as primary caretakers of their children, that in the wake of SB 1070 they will no longer be able to keep their children safe – to defend them from local law enforcement. Stories of women who, as Grace Chang, author and scholar on immigrant women and one of the delegates put it, have suffered “outrageous and brutal abuses that have been occurring long before the passage of this law”; abuses like being violently beaten by local law enforcement after being rounded-up in “sweeps” and being sexually assaulted by immigration officials.

Some sections of the law will remain as is. From The Wall Street Journal:

Among the provisions left intact, one would make it a crime to impede traffic while stopping a car to pick up illegal-immigrant day laborers, while another would stiffen penalties for existing crimes such as knowingly hiring illegal immigrants.

And from Think Progress:

However, a few problematic sections remain including the one which allows Arizona residents to sue local police if they believe they are not enforcing what remains of SB-1070 and the creation of a separate crime for knowingly transporting an undocumented immigrant under any circumstance, even in an emergency.

Think Progress also reminds us that the judge in this case, Judge Susan Bolton, was recommended for nomination by Republican Senator Jon Kyl (AZ), a proponent of the law (although she was appointed by President Clinton). You remember Kyl, right? He was the senator who didn’t feel maternity care needed to be covered by all private insurance plans since he didn’t need maternity care himself. It took Sen. Debbie Stabenow (D-MI) to remind him that his mother probably did. 

Judge Bolton, in issuing her ruling, said,

“By enforcing this statute, Arizona would impose a ‘distinct, unusual and extraordinary’ burden on legal resident aliens that only the federal government has the authority to impose.”

Organizations like the National Coalition for Immigrant Women’s Rights (NCIWR) and the National Domestic Workers Alliance have yet to issue press releases and there hasn’t been word from other immigrant women-focused groups on their take but as soon as we hear, I’ll post on it.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

071midyearstateabortionstable

In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

News Law and Policy

Mississippi Judge Won’t Block Law That Could Deny Services to Gay Couples

Jessica Mason Pieklo

A federal judge Monday refused to block a law that advocates say will enshrine discrimination against the LGBTQ community.

A federal judge in Mississippi on Monday refused to block a law that challengers say will deny wedding services to LGBTQ couples, all in the name of protecting “religious liberties.”

The Mississippi legislature passed HB 1523, the “Protecting Freedom of Conscience from Government Discrimination Act,” this year; the law is set to take effect July 1. The law allows denial, “based upon a manner consistent with a sincerely held religious belief or moral conviction,” of services or goods for the “celebration or recognition of any marriage.” This could also include pre-ceremony, post-wedding, and anniversary celebrations. The law specifically provides protection for people who believe that marriage is a commitment only between a man and a woman, that sexual relations should only take place inside such a marriage, or that a person’s “immutable biological sex” is determined by anatomy and genetics at birth.

In May, attorneys from the American Civil Liberties Union (ACLU) and the ACLU of Mississippi sued to block the law, arguing it was unconstitutional. These attorneys say HB 1523 goes far beyond refusing wedding services by allowing county clerks to deny marriage licenses. They claim the law is likely to allow discrimination against same-sex couples who wish to adopt, and will encourage employee business practices that could include harmful bathroom policies.

But on Monday, Federal District Judge Carlton Reeves ruled that the plaintiffs, who include Nykolas Alford and Stephen Thomas, a gay couple engaged to be married, failed to show evidence that they faced a “substantial threat of irreparable harm” if the law was not blocked immediately.

“Here, none of the plaintiffs are at imminent risk of injury,” Reeves wrote. “Alford and Thomas’s injury, if one exists, would arise when they apply for a marriage license. But they declare that they will apply for their license sometime within the next three years,” Reeves continued. “That is not imminent. The ACLU has the same problem. If a member of the ACLU intends to enter into a same-sex marriage in 2017, any injury is at least six months away.”

In response to the ruling, the ACLU filed a motion requesting Reeves reconsider the denial of the injunction, which would block the implementation of the law as trial proceeds. Meanwhile, the judge has ordered both attorneys for the State of Mississippi and the ACLU to begin working up a scheduling order to move the case toward trial.

A date for that trial has not yet been set.