Roundups Law and Policy

Legal Wrap: Lawsuits Against Birth Control Benefit Continues, and Texas GOP Wants to Subsidize Businesses that Break the Law

Jessica Mason Pieklo

The federal government may be moving forward with the birth control benefit, but the real action in reproductive rights remains in the states.

On Friday the Obama administration announced its proposed revised rule governing the contraception mandate, but there’s no reason to think the political opposition to the mandate will change anytime soon. Just last week Michigan’s attorney general Bill Schuette filed a brief in support of Domino’s Pizza founder Tom Monaghan’s challenge to the mandate and the argument generally that the private, for-profit sector has religious rights in conflict to the mandate.

Meanwhile a federal judge in Missouri dismissed a challenge to the mandate by the Archdiocese of St. Louis on the grounds that they had rushed into court too early and needed to wait until any changes to the law are finalized.

In Mississippi the fate of the clinic’s sole abortion clinic hangs in the balance with the parties submitting final briefing to the court over whether the state’s TRAP law that is forcing the closure is unconstitutional and should be permanently blocked. Instead of arguing that closing the clinic would not create any significant hardship for the women of Mississippi, the state admits it in fact it will, but claims its forced closure of the clinic is really the fault of providers and patients.

Texas is close behind Mississippi in making access to reproductive health care all but impossible to get and now documents released to Rewire show that the Texas Department of State Health Services ignored public input asking it to reconsider or revise new abortion reporting requirements at the direction of one anti-choice lawmaker and a handful of his colleagues.

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Meanwhile Republicans in the state have suggested subsidizing businesses that ignore federal law and refuse to comply with the birth control benefit in Obamacare. The “Hobby Lobby” bill would essentially grant those businesses a exemption under Texas tax law that would match financial penalties imposed as a result of not complying with the mandate up to the total in taxes that business owes to Texas. The law appears fraught with constitutional problems, but as we’ve seen, that’s never stopped politicians on the right from passing bills anyways.

And just like conservatives will push obviously unconstitutional bills in the name of the Constitution, as Sheila Bapat notes, some of the most vociferous opponents to abortion rights and access are also opposed to economic policies that can help struggling families, like paid family leave. A fitting observation as we also celebrate the Family Medical Leave Act turning 20 this week.

Roundups Politics

Campaign Week in Review: Clinton Hits Back Against GOP’s Voter Suppression Efforts

Ally Boguhn

“When [Scott] Walker's Republican allies sat down to write this voter ID law, they knew full well it would unfairly target communities of color and prevent 300,000 mostly poor, elderly and student Wisconsinites from voting,” Clinton wrote. “In fact, that was the whole idea.”

Donald Trump secured enough delegates to win the Republican presidential nomination this week, and Democratic candidate Hillary Clinton sounded off on GOP-imposed voting restrictions.

Associated Press Declares Trump the Republican Nominee

Trump has won enough delegates to become the nominee for the Republican Party, according to a Thursday count by the Associated Press (AP).

Trump’s victory comes as little surprise given that he was only ten delegates away from the nomination after winning Tuesday’s primary contest in Washington state. According to AP, a count including unbound delegates was enough to put the presumptive nominee over the edge:

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The New York businessman sealed the majority by claiming a small number of the party’s unbound delegates who told the AP they would support him at the national convention in July. Among them was Oklahoma GOP chairwoman Pam Pollard.

“I think he has touched a part of our electorate that doesn’t like where our country is,” Pollard said. “I have no problem supporting Mr. Trump.”

It takes 1,237 delegates to win the Republican nomination. Trump has reached 1,239 and will easily pad his total in primary elections on June 7.

The billionaire’s win marks the end of a heated primary season. However, the departure of Trump’s rivals from the race doesn’t mean the end of their influence on the election. Former challengers Sen. Ted Cruz (R-TX) and Ohio Gov. John Kasich (R) both control their delegates, “potentially giving them influence over the direction of the party’s platform at the Republican convention July 18-21 in Cleveland,” according to the New York Times.

Abortion rights have been a key issue among GOP candidates battling to showcase their extremism on the subject throughout the race, and may play a large role at the convention. Trump told NBC’s Savannah Guthrie in April that he would “absolutely” look to change the party’s platform on abortion to include exceptions for cases of rape, incest, and life endangerment—much to the dismay of conservatives and anti-choice activists.

Cruz backers and other influential Republicans have reportedly moved to block “language that could be added to the platform or watered down in the existing party roadmap on abortion, transgender rights and same-sex marriage,” according to CNN.

Clinton Pitches Expansion of Voting Rights in Wisconsin Op-Ed

Clinton pushed her plans to expand voting rights in an op-ed published Wednesday in Wisconsin’s Journal Sentinel.

Clinton used Wisconsin’s voter ID law, which may have disenfranchised as many as 300,000 voters in April’s presidential primary, to discuss barriers to voting and the communities they impact. “When Walker’s Republican allies sat down to write this voter ID law, they knew full well it would unfairly target communities of color and prevent 300,000 mostly poor, elderly and student Wisconsinites from voting,” Clinton wrote. “In fact, that was the whole idea.”

The former secretary of state noted that laws suppressing voter turnout are popping up in states with GOP-majority legislatures. “From Alabama to South Carolina, to Texas, state legislatures are working hard to limit access to the voting booth,” Clinton wrote. “And since it’s clear we now have to be vigilant everywhere, as president, I would push for taking several additional actions at the national level.”

Over the course of the 2016 election season, 17 states will experience new voting restrictions—including voter ID laws and registration restrictionsfor the first time, according to the Brennan Center for Justice.

Clinton detailed the specifics of her platform to expand voting access. Her four-pronged approach included urging Congress to act on restoring the protections in the Voting Rights Act gutted by the Supreme Court in 2013; implementing reforms to the Presidential Commission on Election Administration pertaining to early and absentee voting; creating a “a new national standard of 20 days of early in-person voting everywhere”; and instituting universal voter registration for all Americans when they turn 18.

Clinton on the campaign trail has repeatedly addressed voting rights and Republican efforts to suppress votes. The Democratic presidential candidate outlined a similar plan to improve access to the polls in a June 2015 speech in Houston, Texas.

“We have a responsibility to say clearly and directly what’s really going on in our country,” Clinton said at the time, according to MSNBC. “What is happening is a sweeping effort to disempower and disenfranchise people of color, poor people, and young people from one end of our country to the other.”

What Else We’re Reading

Of Trump’s 70 paid campaign staff members, 52 of themor roughly 75 percentare men, reports Laura Basset for the Huffington Post. Democratic presidential candidate Bernie Sanders’ campaign also has some troubling gender demographics: none of the ten highest paid employees on staff are women.

Meanwhile, those over at New York Magazine’s The Cut wonder “who are the women who make up 25 percent of Trump’s campaign staff and are they okay?”

The Atlantic details Hillary Clinton’s “Medicare for More” health-care platform.

Would you be surprised if we told you that Trump’s new Christian policy adviser is a televangelist who believes he single-handedly stopped a tsunami and that AIDS is caused by “unnatural sex”?

The [Trump] campaign probably won’t choose “a woman or a member of a minority group” for Trump’s running mate, adviser Paul Manafort told the Huffington Post in an interview published Wednesday. “In fact, that would be viewed as pandering, I think,” Manafort said.

Vox’s Dara Lind explains the problem with Manafort’s admission: “The assumption: The only reason someone might pick a woman or person of color for a job would be because they’re a woman or person of color.”

Trump’s proposals for colleges and universities have at least one thing in common with Sen. Elizabeth Warren (D-MA), but “could lock poor students out of college,” Donald Heller, provost and vice president of academic affairs at the University of San Francisco, writes for the New Republic.

More bad news for the Republican presidential candidate: Many white women living in the suburbs of swing states whose votes are needed for Trump to win the general election just aren’t feeling him. Sad!

“There are more examples of shark attacks in the United States and exploding toilets than there was of voter fraud,” Rep. Rick Larsen (D-WA) said this week, referring to a conservative myth that leads to legislation perpetuating voter suppression. Larsen is a part of the newly-formed Voting Rights Caucus, which was created to “educate the public about their rights as voters, advance legislation that blocks current and future suppression tactics, and brainstorm creative ways to bring our election process into the 21st Century.”

An Ohio court ruled that former Republican presidential candidate Kasich’s efforts to cut early voting days are “unconstitutional and … accordingly unenforceable.” The state of Ohio has filed an appeal to the decision.

Janell Ross examines “the race-infused history” behind the disenfranchisement of those who have been convicted of felonies.

Analysis Human Rights

Unanswered Questions Abound in Gynnya McMillen’s In-Custody Death

Kanya D’Almeida

One of the most pressing questions among advocates and attorneys is whether or not there is a link between a scuffle that took place during her intake in the facility and her death several hours later.

It began with a 9-1-1 call and ended with the death of a 16-year-old Black girl in a youth facility in Kentucky.

Little has been written about the girl’s case, but advocates and organizers say it is illustrative of failures at multiple points in the state’s juvenile justice system.

Gynnya McMillen was found unresponsive in her room at the Lincoln Village Regional Juvenile Detention Facility in Hardin County, Kentucky, on January 11, where she had been taken the previous morning following a domestic altercation with her mother.

In the three months since, there’s been a state investigation into her death, lawmakers have proposed legislation to investigate in-custody fatalities, and several staff members at the facility have quietly left their posts.

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And yet the teenager’s untimely death continues to be shrouded in mystery.

One of the most pressing questions among advocates, attorneys, and McMillen’s family is whether there is a link between a scuffle that took place during her intake at the facility and her death several hours later.

By Kentucky officials’ own admission, multiple adult staff members physically restrained McMillen using an “aikido” hold—a modified martial arts move—after the teen allegedly refused to remove her sweatshirt as part of a routine check-in procedure. As Graham Kates has reported for CBS News, surveillance camera footage shows staff bringing McMillen to the ground and holding her there for four minutes and 15 seconds. However, the footage fails to capture the full extent of the incident since the girl was brought down behind a counter and remains hidden from view for much of the incident, according to Kates.

In a February email to Rewire, a spokesperson for Kentucky’s Justice Cabinet (which oversees the state police, the Department of Corrections, and the Department of Juvenile Justice, among others), described the martial arts hold as a “nationally-approved system called Aikido Control Training, which is utilized by various juvenile justice agencies and mental health facilities throughout the country [and] designed to prevent injury to the child and staff.”

“Since strength of the employee is not a factor, only balance, injury to the child and staff is almost nonexistent,” Lisa Lamb, a spokesperson for the state Justice Cabinet, explained. “This control method does not use any type of strike, punch, choke, wrist lock or throw.”

But experts with decades of experience working on inmates’ rights and conditions of confinement tell a different story.

One of them is Paul DeMuro, a senior consultant at the Annie E. Casey Foundation and the current federal court monitor for a juvenile justice settlement in Mississippi. He told Rewire in a phone interview that in all his 44 years of experience he has never once heard mention of this “aikido” hold or known of any facility that has employed it as a form of restraint.

“From what I know of the case, there was no reason to use this particular restraint on this young woman,” he said. “To use that kind of force to resolve an issue as simple as a teenager saying she didn’t want to take her sweatshirt off goes against both the letter and spirit of most policies regarding physical restraints,” he added.

According to DeMuro, employees at Lincoln Village appear to have dealt with a frightened young girl as though she were a violent offender, escalating her anxiety instead of talking her through it. “Add the race and class elements,” he said, “and you have a situation in which several adult staffers are taking down a 16-year-old kid. This never should have happened—she was essentially going through a simple booking process and she wound up dead.”

Kentucky officials have vehemently denied the allegation that the girl suffered some deadly trauma or injury as a result of being tackled to the ground by multiple adult males. On March 16, the state medical examiner announced at a press conference that McMillen had died of a rare genetic disorder, called inherited long QT syndrome, which can cause “life-threatening arrhythmias [irregular heartbeats] and sudden cardiac arrest,” according to the Centers for Disease Control and Prevention.

But McMillen’s family rejects those findings. Shortly after Gynnya’s death, her sister created a Facebook page to gather and share information about the case. A series of posts, presumably written by a family member who manages the page, suggested that the “aikido” hold caused or contributed to her death.  The family has also consistently drawn attention to the fact that staff members at the facility failed to conduct mandatory 15-minute bed checks throughout the night, and were slow to perform CPR on the girl when at last she was found to be unconscious in her room.

State officials cannot refute this allegation. Investigators said at the press conference earlier this month that Lincoln Village employees acted unprofessionally by neglecting to provide adequate supervision and falsifying documents such as observation reports. After reviewing 60 hours of footage from the facility, Kentucky Justice and Public Safety Cabinet Secretary John Tilley said, “Some of the misconduct smacks of outright indifference,” pointing to one incident caught on video in which a staff member offers McMillen a sandwich and, receiving no reply, later eats the meal himself.

Tilley dismissed two employees in connection with McMillen’s death—Victor Holt and Reginald Windham, both of whom have previously been reprimanded for using excessive force on youth.

“Why Was She Arrested in the First Place?”

While much of the limited reporting around McMillen’s case has focused on events that transpired inside the detention center, juvenile justice advocates are equally concerned about why the girl was arrested in the first place.

“There is a much larger story here, about each of the points in the process where the system failed this child,” Liz Ryan, president and CEO of the Youth First Initiative, told Rewire. “For instance, why was she detained and arrested in the first place?”

Ryan believes McMillen’s case is indicative of the impacts of mandatory arrest laws, and later pro-arrest laws, that were introduced under the Violence Against Women Act (VAWA) in a bid to curb intimate partner violence, by instructing or encouraging police officers responding to domestic violence calls to remove a possible abuser from the household.

Though designed to protect women from spousal or partner abuse, the laws have had the perhaps unintended consequence of driving vast numbers of girls into the criminal justice system for altercations with their families.

According to Francine Sherman, clinical professor and director of the Juvenile Rights Advocacy Project at the Boston College Law School, girls comprise 40 percent of youth arrested for domestic assault, even though they account for just 29 percent of overall arrests nationally.

“Girls are disproportionately arrested for domestic assault, largely for altercations with their mothers,” Sherman told Rewire in a phone interview. “So the events that led up to McMillen’s arrest are not at all unusual nationally.”

Sherman, who co-authored a recent study on girls’ increasing share of the burden of youth incarceration, said that although Kentucky does not have mandatory arrest laws on the books, the state follows what are known as officer discretion laws, which have been susceptible to reliance on arrests as a means of resolving domestic disputes.

It is one of just many “pathways” that are still funneling girls into the juvenile justice system, despite an overall decrease in the national youth incarceration rate. Sherman’s research shows, for instance, that while the Juvenile Justice and Delinquency Prevention Act bars judges from jailing girls for simple status offenses (offenses that apply only to minors, such as violating a curfew), girls who fail to comply with a valid court order (VCO) regarding these offenses can still be detained. In 2014, Kentucky used the “VCO exception” 1,048 times—more than any other state.

And as multiple researchers have pointed out, Black girls are disproportionately represented in every stage of the justice system. By Sherman’s estimates, using justice department data, girls of color comprise 61 percent of incarcerated girls. “In 26 states and the District of Columbia, the placement rate for Black girls surpassed the rate for all other race and ethnic groups,” Sherman told Rewire.

Set against this backdrop, McMillen’s arrest and detention are hardly unusual; in fact, the circumstances surrounding her death are indicative of a long history of policing and punishing Black girls that advocates say has been largely sidelined.

“For decades society has placed huge pressure on Black girls: either by sexualizing their bodies, or portraying them as having ‘superhuman’ strength,” explained Chanelle Helm, a Kentucky-based organizer and researcher who has been mobilizing community support for Gynnya McMillen’s case.

“We’ve repeatedly seen Black girls being detained in violent and highly sexualized—we saw it with the officer in Texas using his entire body to restrain a Black teenager in a bathing suit; we saw the same thing with an officer assaulting a Black girl at the Spring Valley high school in South Carolina,” she added.

“If you listen to the 9-1-1 call that McMillen’s mother made right before her arrest, you see this same pattern—of the girl being called degenerate, sexualized names,” said Helm, who is a former board member of the Kentucky Alliance Against Racist and Political Repression and a member of Stand Up Sundays, part of Black Lives Matter-Louisville. “And then you see her being bodily detained by employees at the detention center.”

Helm added that Black girls going through the child welfare system often have health conditions that go undetected “due to an overall culture of negligence when it comes to [their] health.”

“Heart arrhythmias are hard to detect, especially for people who can’t afford that kind of medical care,” Helm said. “And if you’ve gone through as much as Gynnya was going through—being in the child welfare system, getting into a fight with her mother, sitting alone in that detention center—how are you going to know it’s something more than anxiety?”

Advocates Seek Far-Reaching Reforms

The question of who bears ultimate responsibility for McMillen’s death has not yet been answered. Once the Kentucky State Police wrap up their investigation, a prosecutor is expected to present the case to a grand jury to determine whether to bring criminal charges against possible defendants.

Advocates, taking their lead from McMillen’s family, say they want accountability. A Color of Change petition addressed to Gov. Matt Bevin (R) calls for the termination of superintendent Michelle Grady, who was responsible for the Lincoln Village facility, as well as any staff who were involved in the incident.

Local organizers, meanwhile, want further-reaching reforms.

“Our main goal is a complete overhaul of Kentucky’s juvenile justice system,” M.L. Butler, a member of a group called The Voices Unheard, which has been organizing around McMillen’s case, told Rewire. “We want to see the closure of the Lincoln Village facility and the decriminalization of Black youth.”

According to the state Juvenile Justice Department’s 2012 annual report, the 48-bed facility was slated for closure in 2013 in a bid to slash the department’s expenses by $2 million. It is unclear why these plans did not go through, and the state will likely have to answer this question under pressure from activists.

Butler told Rewire in a phone interview that grassroots groups are mobilizing for a protest outside the Hardin County Justice Center on April 8 to demand justice for McMillen. Many of these groups, including Helm’s Stand Up Sundays, were among the first to call attention to McMillen’s death, staging vigils outside the detention center from as far back as January and drawing a smattering of media to an otherwise completely overlooked case.

“We had 50 people at our first vigil and we’re hoping for as many, if not more, supporters on April 8,” said Butler, whose group works with the Oakland-based direct action training collection BlackOUT.

Those familiar with Kentucky’s Department of Corrections say activists are going up against a system that has shown little regard for inmates’ lives.

One of them is Greg Belzley, a Kentucky-based lawyer who has been inmates’ rights lawyer for more than two decades and sued state prisons and county jails “repeatedly” over detainee deaths and conditions of confinement, is not optimistic.

One of them is Greg Belzley, a Kentucky-based lawyer who has sued state prisons and county jails “repeatedly” over detainee deaths and conditions of confinement. He is not optimistic.

“Time and time again there is an inexcusable, horrifying, or grotesque inmate death in Kentucky. And time and time again no one is prosecuted and nothing happens,” he told Rewire in a phone interview, adding that in the two-year period from the beginning of 2012 to the end of 2013, there were more than 100 deaths in Kentucky jails and prisons.

He is particularly skeptical about a piece of legislation introduced in the house a month after McMillen’s death, which would create an independent panel of experts to review in-custody deaths across the state. Belzley’s biggest concern is that the panel would include 13 nonvoting members—almost double the number of voting members—who “represent organizations that have never shown the slightest interest in spending the time or money required to properly attend to inmates’ medical needs or seriously investigate or prosecute instances of inexcusable detainee deaths,” he said.

These include the Kentucky County Judge/Executive Association, the Commonwealth Attorney’s Association, and the state’s Jailers Association.

“Legislative efforts have made no difference—it’s been business as usual in this office,” Belzley told Rewire, adding that the root of the problem is the ingrained mindset among those directly responsible for detainees, whether jailers or medical personnel, that they do not warrant humane treatment.

“I’m working on cases right now that would turn your stomach,” he told Rewire, adding that he’s represented inmates who died of alcohol and drug withdrawal, covered in their own feces and urine, even though there was a hospital a few miles away.

“I’ve seen it happen so many times—a jailer will look in on an inmate who appears to be sleeping and unless there’s blood all over the floor or the inmate is hanging from a cord they will generally just make a note on their observation log that everything is okay,” he said.

While Belzley’s work has largely focused on adult jails and conditions of confinement, his analysis bears a striking resemblance to the kind of negligence that occurred in McMillen’s case.

“People need to start taking inmates’ lives seriously,” Belzley said. “Any responsible person who heard that a 16-year-old girl was put in a martial arts hold for over four minutes because she wouldn’t remove her sweatshirt and was found unresponsive the next morning, would say there was cause for a serious criminal investigation—and if there is probable cause to believe there was a violation of criminal laws in the treatment of this young woman, somebody needs to be prosecuted and if found guilty they need to go to jail.”