Conservative lawmakers in Kansas may be trying to reverse decades of gains, but a first-of-its-kind ruling from the state’s supreme court shows that even in the heart of conservative Kansas change is coming.
On Friday the Kansas Supreme Court ruled that the non-biological mother of children in a same-sex relationship has the same parental rights as the biological mother. The ruling is a significant victory for the rights of parents in non-traditional relationships and families and comes as nearby states like Iowa consider similar issues. “This is significant both in Kansas and nationally,” said Catherine Sakimura of the National Center for Lesbian Rights to The Kansas City Star Tribune. “It recognizes the rights of those who hold themselves out as parents regardless of biology or gender.”
Friday’s ruling involved the case of Kelly Goudschaal and Marci Frazier, two women whose long-term relationship ended after they had become parents of two girls who are now 10 and 8. The children were conceived by artificial insemination and were carried by Goudschaal. The couple had signed a co-parenting agreement that stated Frazier’s “relationship with the children should be protected and promoted,” and that they intended “to jointly and equally share parental responsibility.”
But after they separated, Goudschaal began limiting Frazier’s visitations and moved with the children to Texas. Frazier sued and asked a judge to enforce the parenting agreement. After a trial, Johnson County District Judge Kevin Moriarty found that joint custody was in the best interests of the children” and Goudschaal was granted residential custody. Frazier was ordered to pay monthly child support and was granted “reasonable parenting time.” Frazier appealed, arguing the court could only enforce parenting agreements that were supported by Kansas law and since Kansas did not recognize same-sex marriage, the district court’s findings were in error.
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The Kansas Supreme Court disagreed, holding that “the public policy in Kansas requires our courts to act in the best interests of the children when determining the legal obligations to be imposed and the rights to be conferred in the mother and child relationship.” Not enforcing the parenting agreement in this case would deny the children the opportunity to have two parents as children in a traditional marriage would have, the court reasoned. “The agreement is not injurious to the public because it provides the children with the resources of two persons, rather than leaving them as the fatherless children of an artificially inseminated mother,” the court ruled.
As part of the ruling, the court ordered the appointment of an attorney to represent the interests if the children and said additional hearings should be held in the trial court concerning the issue of what is in the best interest of the children as well as issues related to property settlements between the women.
The decision grants legal standing to parenting agreements between same-sex couples, essentially placing them on similar footing as opposite-sex couples when it comes to courts respecting, and enforcing, parenting decisions the couples arrive at together. It’s a significant step in the direction of same-sex parenting relationships receiving equal treatment under the law. If Kansas courts have embraced this principle, then we really have come a long way in this fight.
“Given the pain and the suffering immigrants have been facing with family separation—the minimum the president can do is stop deportations," said Tania Unzueta, policy and legal director at #Not1More, a campaign to stop anti-immigrant laws.
Immigrant rights organizations say forcing such a large segment of the undocumented population to live in fearis “unacceptable,” and they are calling for a moratorium on deportations.
“Honestly, we were waiting on the Supreme Court to give us something, anything in the form of relief, and it didn’t happen,” said Tania Unzueta, policy and legal director at #Not1More, a campaign to stop anti-immigrant laws. “This is why we’re calling for the moratorium. It feels like this is the minimum we can ask for. People would be much happier with rights and citizenship and being able to do things like legally work in this country, but that’s not on the table right now. Given the pain and the suffering immigrants have been facing with family separation—the minimum the president can do is stop deportations.”
Stopping deportations, which have separated thousands of families, is within President Obama’s power, advocates say. As Unzueta wrote recently at the #Not1More site, the Supreme Court’s inaction in United States v. Texas “did not result in a challenge to the federal government’s jurisdiction over immigration enforcement issues or the President’s executive power to expand, reduce, or shut down the immigration enforcement programs that it has invested in.” And as Peter L. Markowitz, a professor at the Benjamin N. Cardozo School of Law, wrote in the New York Times, the president does have the “pardon power,” which includes “the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest.” Unlike deferred action, amnesty would not provide work permits, but there would be no complicated application process and it would be a form of immediate relief for millions of undocumented immigrants. However, given the president’s immigration track record, it’s unclear if President Obama is even considering amnesty.
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The president’s executive action would have expanded the Deferred Action for Childhood Arrivals (DACA) program, enabling eligible undocumented immigrants to receive three-year work permits, and created Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA would have provided a renewable work permit and exemption from deportation for two years to undocumented parents with children who are U.S. citizens or legal permanent residents and also meet certain requirements.
After the Supreme Court announced its split decision, President Obama essentially washed his hands of the undocumented community for the remainder of his presidency, while also leaving behind a “deportation machine” for the next president of the United States, Unzueta told Rewire.
In remarks after the Supreme Court ruling, President Obama said that in November when the next president is elected, he believes the country will get an immigration policy that reflects “the goodness of the American people” and that he has “pushed to the limits” of his executive authority. “We now have to have Congress act,” the president said, while also assuring Americans that the enforcement policies enacted by his administration will remain in place.
The president is referring to policies like the Priority Enforcement Program (PEP), announced November 20, 2014, the same day he announcedthe expansion of deferred action. PEP replaced Security Communities, an immigration enforcement and deportation program, though advocates argue that PEP is simply a continuation of Secure Communities. Both programs include local law enforcement working with ICE to detain undocumented immigrants.
“Since that announcement of both DAPA and PEP, there are members of our community who have experienced no relief. Now, because of the [Supreme Court] ruling, all that’s come is an increase in the ability to deport people. To me, that proves that you can’t put all of your eggs in one basket, and Obama can’t rely on trying to expand deferred action as the only response to immigrant communities. There’s so much more that he can do,” Unzueta told Rewire.
In a post for #Not1More, the policy and legal director outlined all of the avenues President Obama could take in light of the Supreme Court ruling, including stopping the home raids that have been taking place since January, reviewing his enforcement priorities such as targeting those who recently arrived in the United States, and ending “all programs that entangle local law enforcement and immigration enforcement.” Unzueta also wrote that the president could stop defending “the erosion of the few rights that immigrants have in detention centers,” referring to Jennings v. Rodriguez,a case the Supreme Court announced it would take four days before it issued its decision on DAPA. In Jennings, the Court will debate how long undocumented immigrants detained for immigration violations can be held in detention. “The case had already been decided in the 9th Circuit Court, indicating that immigrants had a right to a regular review of their case via a bond hearing,” Unzueta wrote. “The Obama administration is pushing against this decision asking the Supreme Court to overturn it, arguing effectively for fewer rights for immigrants who are detained.”
The most pressing concern, however, is deportations, which is why #Not1More and other groups, including ICE Out of Austin and the Connecticut Immigrant Rights Alliance (CIRA), are calling for a moratorium on them.
On June 27, the Georgia Latino Alliance for Human Rights blocked the ICE Atlanta field office and undocumented members of CIRA blocked traffic at the Hartford, Connecticut, immigration office demanding a moratorium on deportations. According to CIRA member Stefan Keller, the Hartford action resulted in the arrest of nine protesters, some of whom were undocumented. But because Hartford is a sanctuary city, which is a region that does not work with ICE for the detainment and deportation of undocumented community members, undocumented protesters were not at risk of deportation.
Alejandro Caceres, an organizer with ICE Out of Austin, a campaign to end Austin law enforcement’s partnership with the federal immigration agency, told Rewire the Supreme Court ruling has left many in Austin’s undocumented community feeling sad and frustrated, but that he’s now more committed than ever to focus his efforts locally.
“I think our organizing mentality is that we can’t do anything about the Supreme Court, but we do have the power to work to end deportations here locally,” Caceres said. “Our campaign has a four-resolution plan, and it ends with a city ID.” Community ID programs for undocumented immigrants have been adopted in various cities nationwide, including some in North Carolina, where this initiative is currently under attack. Under these programs, the city issues identification cards, which can make undocumented communities safer.
“That’s something we’re very recommitted to in the light of the Supreme Court ruling. It’s not a solution to the larger problem, but it’s a solution we can focus our energy on. It’s not citizenship. It’s not work authorization. But it’s something, and it’s one more barrier to stop folks from being deported.”
Like Unzueta, Caceres believes there is more Obama can do before he leaves office; there is more he must do, the organizer said, because without DAPA or the DACA expansion, millions ofpeople are at risk of deportation. This is why ICE Out of Austin signed on to call for a moratorium on deportations.
“Saying, ‘DAPA didn’t pass, there’s nothing I can do,’ just isn’t true, and it’s not holding yourself accountable to the immigrant community. We know he [President Obama] can do more, and that’s why we want to put a stop to the deportations. Those who have been calling for comprehensive immigration reform understand people are being needlessly deported, and if they understand that, they have to agree that we must put a stop to deportations as soon as possible. If folks continue to be deported, that is the most urgent crisis we have and that is the issue we will continue to fight,” Caceres said.
Demanding a stop to deportations is a way to push President Obama to do more, according to advocates. Every immigration win that has come from the Obama administration began with pressure from undocumented organizers and activists, Keller said, and the call for a moratorium on deportations is no different.
“The president said it’s up to us, it’s up to Congress, it’s out of his hands. But if Congress isn’t going to help create a just immigration system, we need to put a halt on deportations until this broken system is fixed,” Keller told Rewire. “There is no justice in separating families. This is punishing people because no one is capable of reform or carrying out any other plan of action.”
Providing Tangible Support
President Obama is commonly referred to as the “deporter-in-chief” by immigrant rights activists. It is such a commonly used phrase, in fact, that in January when asking Hillary Clinton about her immigration policies, journalist Jorge Rivas asked Clinton if she would be the next deporter-in-chief. According to a Fusion report, President Obama has deported more immigrants than any president in history, more than 2.5 million since 2009. And as the Nation reported, under his administration the budget for immigration enforcement increased by 300 percent.
Chances are, Caceres told Rewire, that these deportations will continue no matter who is president.
“It was Democrats who [deported over 2 million people]; it was Democrats who implemented family detention. If this continues, the immigrant community, the undocumented community, Latinos, all kinds of people will no longer see any political party as viable or trust-worthy. Neither party helps us.”
“That’s why the response to the undocumented community from liberals and Democrats can’t just be, ‘We’re going to go out and vote and elect a Democratic president.’ We can’t rely on one party,” Unzueta added.
#Not1More’s policy and legal director said it’s hard to get behind any politician, presidential candidate or otherwise, who isn’t willing to say that they want to dismantle the deportation machine, stop deportations, and cut back on the policies and programs that target immigrant communities. “Saying you will work toward comprehensive immigration reform is not what we need at this moment. Saying you will work on stopping deportations is what the community needs. That is the immediate concern,” she said.
In March, the Latin Post reported that “the Democratic Party leaders in the Senate and House of Representatives, in addition to 223 additional members of Congress, filed the amicus brief defending DAPA and DACA’s expanded guidelines.” Advocates say those same politicians and lawmakers must provide tangible support to the undocumented community by helping to stop deportations. Whether that’s publicly pressuring the president to stop deportations after the Supreme Court ruling or lending their voice to individual cases of DAPA-qualified undocumented immigrants who are in detention or deportation proceedings, now is the time, Unzueta said.
Caceres and other members of ICE Out of Austin have been pressuring the Austin Police Departmentand city council for months to adopt a policy not allowing officers to ask about immigration status. Currently, Austin police officers are allowed to inquire about a person’s immigration status—and no one knows that better than Caceres, who was arrested for refusing to discuss his immigration status with an officer. Working to end these types of policies in their own communities is a way to provide the undocumented community with tangible support, the organizer said.
“I think local politicians should really look into their police departments and what policies they have around detaining immigrants,” he said. “If we can’t instate DAPA or stop deportations, we can make it more difficult to deport people. Does your local law enforcement work with ICE? Work to end that. If immigration wants an undocumented person’s information, make sure they have to come with a warrant. Ending the Priority Enforcement Program in your community, that’s tangible support,” Caceres said. “It can make you feel good to write a letter to the Supreme Court saying you’re disappointed in the ruling, but that doesn’t really do anything for us. Tangible support is ending ties with ICE. Letting folks in the community know that if they get arrested, for any reason, they will not be deported.”
In addition, advocates suggest urging local politicians to turn their communities into sanctuary cities. Joining the District of Columbia and 12 states in allowing undocumented immigrants to obtain a driver’s license is also a way for local politicians to provide tangible support, Caceres told Rewire.
Unzueta said she doesn’t know if President Obama will provide a moratorium on deportations and she isn’t sure if politicians who voiced support for DAPA and DACA will step up to the plate to help the undocumented community in this time of need. “Hopeful,” she said, isn’t really in her vocabulary anymore.
“I’ve been doing this a long, long time and I’ve seen so many setbacks. As long as our humanity is debated and we have to fight for basic rights, I don’t get my hopes up because I don’t want to be disappointed. But that doesn’t mean I’m hopeless,” she told Rewire. “I believe in community and I believe in organizing. I believe in the power of an organized community. I choose to invest my hope in that.”
"To the extent that similar state laws have different provisions, like those that contain transfer agreements for example, those laws will need to be litigated individually to fall," said Jessica Mason Pieklo, vice president for law and the courts at Rewire. "The good news is that the Supreme Court's decision in Whole Woman's Health provides advocates with a solid foundation to begin those next fights."
The U.S. Supreme Court struck down Monday two provisions in Texas’ anti-abortion omnibus law known as HB 2, and with that ruling the dominos began to fall. Similar anti-abortion laws in Wisconsin and Mississippi were blocked Tuesday by the Supreme Court, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.
However, significant obstacles remain to ensure access to reproductive health care throughout the country. A number of states have in place slightly different variations of the requirements struck down by the Court, which means it remains to be seen how lower courts may apply Monday’s ruling to restrictions that aren’t exactly like those included in Whole Woman’s Health v. Hellerstedt.
Monday’s decision is a significant victory for patients and providers, but it doesn’t guarantee that targeted regulation of abortion providers (TRAP laws) across the country will start to fall immediately, explained Jessica Mason Pieklo, vice president for law and the courts at Rewire.
“To the extent that similar state laws have different provisions, like those that contain transfer agreements for example, those laws will need to be litigated individually to fall,” Pieklo said. “The good news is that the Supreme Court’s decision in Whole Woman’s Health provides advocates with a solid foundation to begin those next fights.”
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Dozens of states in recent years have passed TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to clinics and physicians in other medical fields.
As Rewirepreviously reported, key players in the development of HB 2 were deeply connected to AUL and other conservative lobby groups.
The Supreme Court ruled in Whole Woman’s Health v. Hellerstedtthat two TRAP provisions under HB 2 placed “a substantial obstacle in the path of women seeking an abortion,” and constituted “an undue burden on abortion access.”
Specifically, the Court struck down the requirement that physicians who provide abortion care must have admitting privileges at a hospital within 30 miles of the facility where the physician will provide abortion services. The Court also struck down the requirement that facilities providing abortions meet ambulatory surgical center (ASC) requirements, which involve prohibitively expensive medically unnecessary building renovations.
There are 16 states that have passed laws mandating that physicians who provide abortion care have admitting privileges or similar requirements. In addition to laws that have been struck down in Alabama, Mississippi, Texas, and Wisconsin, courts have also blocked similar laws in Louisiana, North Dakota, and Oklahoma.
These laws typically require physicians have admitting privileges at a hospital near the facility where they provide abortion care. Some of these laws require that the hospitalsprovide OB-GYN services, and some require the physician to be board certified in OB-GYN medicine.
Other laws require that the hospital be no more than 30 miles from the facility where the abortion is performed, or have varied in defining the geographic boundary.
The law that was struck down in Mississippi required the admitting privileges be obtained at a “local hospital.” And Utah’s current law requires the hospital be within a “travel time of 15 minutes or less,” while Florida’s recently passed law requires the hospital be within a “reasonable proximity.”
There are 24 states that have passed laws requiring facilities in which surgical abortion services are performed to meet ambulatory surgical center standards that go beyond what is needed to ensure patient safety, and another 17 states require clinics that may only provide medication abortion to meet these same standards, according to the Guttmacher Institute.
As Nick Bagley, an assistant professor at the University of Michigan School of Law, told Vox, similar laws that have been passed in other states may face legal challenges in the wake of Whole Woman’s Health, but the details of those challenges may vary. “The Supreme Court only applies to Texas,” Bagley said. “Other states will have slightly different laws with slightly different facts to argue over.”
Florida and Indiana TRAP Laws Set to Take Effect
This year Florida passed its own Texas-style anti-choice omnibus law, which takes effect Friday. However, there are some differences between the two laws, including differences in the types of regulations of physicians who provide abortion care.
Clinics that offer abortion services in Florida will be required to have a written patient transfer agreement, which includes the transfer of the patient’s medical records, with a hospital within “reasonable proximity” to the facility. Physicians also will be required to have admitting privileges at a hospital within “reasonable proximity” to their clinic.
The law also mandates annual inspections of all licensed abortion clinics, requires any medical facility in which abortions are performed to submit a monthly report, and prohibits state or local governments from entering into contracts with organizations that provide abortion services.
State Sen. Kelli Stargel (R-Lakeland), who voted for the bill, expressed concern after the senate vote that the bill’s language could become an issue in the courts. “Those clauses gave me concern that it would make it as though our intent was to close down all abortion clinics in the state,” Stargel told the Tampa Bay Times. “That was not the intent of this bill.”
After the Supreme Court’s ruling on Monday, Stargel reiterated that despite the bill’s similarities to the Texas law, it was not lawmakers intent to restrict access to abortion. “In Florida, we passed [the law] to safeguard women’s health, not to close abortion clinics,” Stargel said in a statement, reported the Florida Sun Sentinel.
Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates, told the Miami Herald that the language of the bill may be different, but that Florida lawmakers had the same intent as Texas lawmakers: to shutter abortion clinics.
“It’s definitely different language,” said Goodhue. “But the intent is the same.”
Planned Parenthood has filed a lawsuit challenging the law, however, the organization is not challenging the admitting privileges requirement.
Goodhue told the Florida Sun Sentinel that the organization will determine if there are grounds for other lawsuits in the future. “Right now, we’re seeking emergency relief on the other three provisions, but we’ll make sure that access to care is protected,” Goodhue said.
Gov Rick Scott (R), who signed the bill into law in March, said during a press conference Monday that his administration is reviewing the Supreme Court’s decision, reported the Miami Herald.
Lawmakers in Indiana have in recent years passed multiple laws to restrict access to abortion, including laws that have provisions mandating that physicians have admitting privileges and other reporting requirements.
Mike Fichter, president and CEO of Indiana Right to Life, said in a statement that the Supreme Court showed “utter disregard for women’s health and safety,” and defended a similar law passed state lawmakers this year.
“We will be reviewing the Supreme Court’s decision thoroughly to see how this legal precedent could affect Indiana’s laws on admitting privileges and abortion facility building standards,” Fichter said.
An omnibus abortion bill passed in 2011 contained multiple abortion restrictions, including a provision that a physician performing an abortion must have admitting privileges at a hospital located in the county where abortions are provided or a contiguous county.
The law also allowed for a physician to meet the requirement by entering into an agreement with a physician who has admitting privileges at a hospital in the county or contiguous county.
The law created a requirement that a written agreement between a physician performing an abortion and a physician who has written admitting privileges at a hospital in the county or contiguous county be renewed annually.
The law also requires the state department of health to submit copies of admitting privileges and written agreements between physicians to other hospitals in the county and contiguous counties where abortions are performed.
Ali Slocum, spokesperson for Planned Parenthood of Indiana and Kentucky, told the Indianapolis Star that the organization does not have any immediate plans to challenge the law in court. “We are focused on what is currently in the pipeline. It is possible that the standard that the court set [Monday] could be used to challenge restrictions in other states,” Slocum said.
Efforts in State Legislatures to Repeal Laws
In some states lawmakers and advocacy groups may push to repeal similar laws following the Whole Woman’s Health decision.
Arizona lawmakers have passed several anti-choice laws in recent years and, like Texas and Florida lawmakers, justified those regulations as necessary to ensure the health and safety of women in the state.
Jodi Liggett, vice president of public affairs for Planned Parenthood Arizona, said in a statementthat the Supreme Court made a “clear statement” that laws that restrict access to abortion care are unconstitutional.
“Arizona is a large state, with population spread across many rural areas. Laws that delay care, require travel over great distances and overnight stays certainly place real-life burdens on women seeking our care,” Liggett said.
Arizona Senate Minority Leader Katie Hobbs told the Arizona Republic that she will lead the effort in the legislature to repeal similar laws. “No woman or doctor should be punished for receiving or providing essential medical care,” Hobbs said. “These restrictions have never truly been about women’s health.”
However, repealing anti-choice laws in the GOP-dominated Arizona state legislature may prove difficult.
Republicans hold an 18-12 majority in the state senate and a 36-24 majority in the state house, and they have introduced dozens of anti-choice bills in the past several years. There have been seven laws to restrict access to abortion passed by Arizona lawmakers, including a law similar to Texas’ HB 2which requires abortion providers to have admitting privileges.
Those efforts have been spearhead by the Center for Arizona Policy, a conservative think tank that promotes anti-choice, anti-LGBTQ, and so-called religious freedom legislation.
Cathi Herrod, president of the Center for Arizona Policy, said in a statement that the Supreme Court’s decision eliminated “common-sense safety precautions” for women seeking abortion care. “To give the abortion industry a blanket exemption from laws applicable to every other medical facility is unconscionable,” Herrod said.
Josh Kredit, general counsel for the Center for Arizona Policy, told the Arizona Republic that the Supreme Court’s decision suggest that abortion providers should be treated differently that other health-care providers.
“They are arguing they should be exempt from garden-variety health and safety regulations,” Kredit said. “It was clear that Texas, when it passed these, was focusing on protecting women, just like many of our laws that we pass in Arizona.”
Dr. Thomas M. Gellhaus, president of the American College of Obstetricians and Gynecologists, said in a statement that the Court’s decision made it clear these laws do not improve the health and safety of patients seeking abortion. Said Gellhaus: “As the court found, it was clear that the ambulatory surgical center and admitting privileges requirements at the heart of Texas law HB 2 did not improve the safety of women, and served only as a barrier to women’s ability to access safe, legal abortion when needed.”
“Of course, this is not the end of the battle when it comes to abortion access,” Gellhaus added. “In dozens of states, women are living under laws that impede access in a variety of ways, for example banning certain abortion procedures, setting gestational limits, mandating that medically inaccurate information be provided to patients, and more. None of these have a basis in medicine, and all of them represent political interference in the patient/physician relationship. We will continue to oppose these laws and to promote safe access to legal abortion for our patients.”