News Law and Policy

Mississippi Supreme Court Dismisses Manslaughter Indictment in Stillbirth Case

Jessica Mason Pieklo

The Mississippi Supreme Court affirmed the dismissal of manslaughter charges against a woman but failed to answer whether the state's criminal statute should be applied against pregnant people.

On Thursday, the Mississippi Supreme Court affirmed a lower court’s dismissal of an indictment against Nina Buckhalter, a Mississippi woman who suffered a stillbirth and was arrested in 2010 because of alleged drug use during her pregnancy. The decision is the latest in a string of prosecutions targeting women for failed pregnancies as conservative lawmakers look for more avenues to police pregnancy.

Prosecutors had charged Buckhalter with negligent culpable manslaughter, after she delivered a stillborn girl, Hayle Jade Buckhalter, in her 31st week of pregnancy. But a local judge threw out the case in 2012, finding some of the language in the manslaughter statute under which Buckhalter had been charged “vague and ambiguous” when applied to “a woman who has caused the miscarriage or stillbirth of her unborn child.” Prosecutors appealed, but the state supreme court said the indictment, which alleged Buckhalter willfully caused the death of the fetus, was flawed.

According to the justices, the underlying indictment failed to provide any information to back the state’s allegation that Buckhalter had “willfully, unlawfully, feloniously” killed the fetus “by culpable negligence.” Among the things prosecutors failed to disclose when they charged Buckhalter was “how Nina allegedly caused Hayle Jade’s death, but from the statements in other pleadings, we assume the State planned to prove at trial that she ingesting illegal drugs during the course of her pregnancy. And neither the indictment nor anything else in the record identifies the type of illegal drugs allegedly involved.”

While the ruling affirms the dismissal, it didn’t go as far as Buckhalter’s attorneys, Rob McDuff and the National Advocates For Pregnant Women, had hoped. The 15th Circuit Court Lamar County had backed the argument advanced by Buckhalter’s lawyer that the indictment should be dismissed, because the state’s manslaughter statute does not apply to a pregnant woman for the death of her unborn child. The lower court partially agreed and ruled the statute was “vague as to whether the legislature intended the term ‘other’ to be specifically inclusive of the pregnant woman herself as against her own unborn child.” But because the state supreme court found the underlying indictment “fatally flawed,” it dismissed the charges against Buckhalter without answering the question of whether or not the state’s manslaughter statutes can be used against pregnant women. That lack of resolution did not sit well with Mississippi Supreme Court Justice Leslie King, who authored a separate opinion stating that while he agreed with the outcome, the court should have addressed the merits of the case. The “decision places Buckhalter at risk of substantial injury—re-indictment and a possible trial and conviction,” King wrote. “Also with re-indictment, Buckhalter will have the same issue to present to the circuit court for resolution—whether she can be charged for murder of any kind under Mississippi statutes.” Justices James Kitchens and David Chandler joined that opinion.

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As noted by the National Women’s Law Center (NWLC), which filed an amicus brief on behalf of Buckhalter, while the prosecution Buckhalter’s case focused on a pregnant person’s alleged use of illegal drugs, nothing in the way the State of Mississippi read the statute would limit prosecutions to illegal activities. Under Mississippi’s theory of the case, a pregnant person could be prosecuted if they experienced a stillbirth after engaging in wholly lawful, “risky” activities during pregnancy. As detailed by the NWLC:

[T]his is by no means a theoretical threat. A pregnant woman in Wyoming was charged with felony child abuse for drinking alcohol, for example, and in Wisconsin, a sixteen-year-old was held in detention throughout her pregnancy based on her tendency ‘to be on the run’ and ‘lack of motivation or ability to seek medical care. Melissa Ann Rowland was charged with murder for refusing to submit to a cesarean section.

Buckhalter’s case in some ways represents the worst of the criminal justice system. Buckhalter didn’t face any drug charges herself, despite the fact that prosecutors believed it was her drug use that caused her stillbirth. Like Bei Bei Shuai, Buckhalter’s case demonstrates a need for social services intervention, not punitive criminal remedies. This has been known to the legal community for a long time now. Historically, courts across the country have soundly rejected prosecutions of women who continued their pregnancies in spite of drug or alcohol problems. But despite that long line of precedent, prosecutors across the country continue to try and prosecute women for failed pregnancies. Not surprisingly, many of these prosecutions are happening in states where abortion access is most under attack and most frequently target poor women and women of color. On that point, the only thing that’s exceptional about Buckhalter’s case is the outcome.

Since the Mississippi Supreme Court failed to address the ultimate question of whether or not the statute allows for prosecution of pregnant people, there is the chance that Buckhalter could be re-charged, but in order for prosecutors to successful charge her the second time around they must be able to disclose exactly how they believe Buckhalter is guilty of manslaughter, which they’ve been unable to do since 2010.

Analysis Law and Policy

The Supreme Court Could Give Religiously Affiliated Employers Even More Room to Discriminate

Jessica Mason Pieklo

A series of cases working their way through the courts could expand which businesses get a pass for offering employees discriminatory health and retirement benefits.

You may remember the Little Sisters of the Poor—that group of earnest nuns who challenged the process for accommodating religious objections to the birth control benefit in the Affordable Care Act. The Little Sisters, along with dozens of other religiously affiliated nonprofits, have continuously argued that the act of completing a form to be legally excused from complying with the law substantially burdens their religious rights.

Well, the Little Sisters remain tied up in litigation with the Obama administration over birth control, nondiscriminatory insurance coverage, and their religious objections to providing for both. But there’s more at stake here. To be clear, the Sisters are intent on doing everything they can to block comprehensive insurance coverage for their employees, and block third parties from providing it to them as well. But buried in litigation footnotes is a provision of employee benefits law that, if the Sisters and other religiously affiliated organizations get their way, will solidify another pass for discriminatory corporate practices beyond contraception coverage alone.

The Employee Retirement Income Security Act, or ERISA, is the federal law governing employee benefit plans, including retirement accounts and health insurance. Both the Department of Labor (DOL) and the Internal Revenue Service (IRS) are charged with ensuring ERISA compliance, which, as you can imagine, makes ERISA a prime target for conservatives who already hate “big government.”

Employer plans governed by ERISA have a few requirements that particularly draw conservative ire. One mandates that employer-sponsored retirement plans meet certain minimum funding levels by the employer. This is to help those plans be meaningful ways for employees to save for retirement, without putting the entire burden on those workers. Another provision forbids those plans from discriminating in benefits, such as matching a higher percentage of a male employee’s retirement contributions than a female one’s, or providing comprehensive health insurance coverage for men but not women. The ACA’s birth control benefit draws upon this theory.

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However, not all employers are required to follow ERISA. In particular, the statute exempts “church plans” from its requirements. ERISA defines church plans as those “established and maintained … for its employees … by a church or by a convention or association of churches which is exempt from tax under section 501 of the Internal Revenue Code.” Church plans also include those plans maintained by an organization “controlled by or associated with a church or by a convention or association of churches.” The rationale behind the church plan exemption is similar to the rationale behind most religious or ministerial exemptions to other nondiscrimination laws: Religious orders and institutions like churches and synagogues will generally employ people who follow the same religious tenets as they do because those organizations are engaged in spiritual outreach as part of their “business.”

That prohibition on ERISA governing “church plans” is also incorporated into the ACA.

Historically, organizations like the Little Sisters have had a regulatory pass when it came to maintaining retirement plans and insurance coverage that are either underfunded, discriminatory, or both. That’s because both the DOL and the IRS have been generous in their determination of how they interpret “controlled by or associated with a church or by a convention or association of churches.” And if those agencies determine that an organization has a “church plan,” that, in turn, means it won’t be subjected to a tax penalty for not complying with the ACA’s birth control benefit.

Given the explosion of religiously affiliated employers like hospitals and nursing homes, however, the scope of what does and does not qualify as a church plan has become an increasingly important issue. As religiously affiliated employers began to grow well beyond employing people of similar tenets, away from their ministerial core and into marketplace competition with secular, for-profit businesses, it has made less and less sense to allow those employers a pass to discriminate under ERISA.

At least that’s the argument advanced in a flurry of lawsuits challenging the scope of the church plan exemption under ERISA. Those lawsuits include one against Dignity Health Care, the Catholic-affiliated hospital system facing separate lawsuits related to failing to offer comprehensive reproductive health care at its hospitals. According to the allegations in the complaint, Dignity repeatedly underfunded its retirement plan in violation of ERISA. Dignity responded by arguing its plans were church plans and not subject to ERISA oversight.

Neither the district court nor the Ninth Circuit Court of Appeals bought Dignity’s argument, holding there was no way that when Congress created the church plan exception, it intended the exemption to stretch as far as to shield the country’s fifth-largest health-care employer from regulatory oversight.

That question presented in the Dignity case—of just how broadly that exemption extends—could end up before the U.S. Supreme Court next term. The Roberts Court is considering a pair of cases with this exact issue at their center. Both involve religiously affiliated hospitals, and both have appellate court decisions ruling that organizations like Dignity, which are not actually churches nor actually maintained by religious orders, may not qualify for the church plan exemption.

Which brings us back to the Little Sisters, on whose cases these organizations will undoubtedly base some of their own arguments. The Little Sisters do have a church plan. And it should mean that they will never have to comply with the birth control benefit anyway—which would give them no standing to challenge the ACA’s accommodation. But this is not the argument the Little Sisters and their attorneys want the courts or the public to hear. Instead, the litigation has focused on whether or not completing the form for the birth control accommodation would be a substantial burden for the nuns, despite the fact that at this point under ERISA, there is no question that the federal government could penalize the Little Sisters for refusing to comply with the contraception benefit.

However, the Little Sisters are more than just a group of nuns. They own and operate facilities that employ and serve others. The DOL and IRS have, to date, agreed that the Little Sisters benefits plan is in fact a church plan. But that is in part because without switching plan administrators, the question of whether or not their employee benefits package still qualifies for the exemption has not arisen again. If and when the Little Sisters do switch plans or administrators, the status of their benefits exemption will come up.

At some point during oral arguments in March in Zubik v. Burwell, the conglomerate of cases challenging the accommodation process to the birth control benefit, the fact that the Little Sisters had a church plan and would never be subject to having to comply with the benefit did come up. Paul Clement, who represented the nuns, skillfully dodged the question of whether there was a church plan issue for the Little Sisters. Instead of acknowledging that fact—one even established in the record as an assumption the Tenth Circuit Court of Appeals was making earlier in the litigation to move the case along—Clement assured the justices the church plan wasn’t really something the Court needed to concern itself with at the moment.

Maybe that’s because Clement and the nuns were hoping that if nobody noticed the pass given Little Sisters in their challenge to the birth control benefit, nobody would notice when hospitals and nursing homes also argue for the right to provide discriminatory retirement benefits and cite Zubik for their authority to do so. Maybe they didn’t know about the fight brewing in the appellate courts over which enormous corporate entities are shielded from regulatory nondiscrimination laws like provisions in ERISA and the ACA.

That seems unlikely, though, doesn’t it?

While it may be dry as toast, the church plan exemption under ERISA is critically important. As we’ve seen throughout the nonprofit challenges to the birth control benefit, when employers are allowed to opt out, the effect disproportionately falls on poor women and women of color. And the wages offered to hospital and nursing home workers? They hardly are the kind to lift a person up to more stable financial footing. Which is all another way to say that conservatives’ assertions that institutions like Dignity Health fulfill some spiritual mission and should therefore be treated like a church are all smoke and bluster. Instead, these institutions want cover for ongoing attempts to nickel-and-dime their own workers and to discriminate, based on religious beliefs, when it comes to how and whom these institutions serve. And they’re hoping the Roberts Court will give it to them this next term.

Analysis Law and Policy

The Issue of Trans Student Rights Inches Closer to the Supreme Court

Jessica Mason Pieklo

With several cases in the legal pipeline, it's becoming a question of when—not whether—the Roberts Court will step into the fight over transgender rights and bathroom access.

On August 29, the Gloucester County School Board in Virginia will file a request asking the U.S. Supreme Court to step into the fight over whether transgender student Gavin Grimm can use the bathroom that aligns with his gender identity. Grimm’s case is not the first of its kind, but it has become one of the most high-profile.

At this point, it’s not a question of whether the Roberts Court is likely to take a case concerning what rights transgender students have under Title IX. It’s more a question of when.

Title IX of the Education Amendment Act of 1972 is a federal civil rights law that prohibits discrimination on the basis of sex in any federally funded education program or activity. Historically, civil rights advocates have used Title IX to guarantee female students access to equal classes, facilities, and educational opportunities. It’s also recently become an important, if flawed tool in addressing campus sexual assault.

“Basically anything distinguishing between boys and girls or men and women is prohibited under Title IX, unless there is a specific exception in the statute or regulations allowing it to happen,” Joshua Block, senior staff attorney with the America Civil Liberties Union’s LGBT & HIV Project and one of the lawyers on Grimm’s case, explained to Rewire in an interview.

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Title IX has some small carve-outs for when and under what conditions schools may discriminate on the basis of sex, Block noted. “The Department of Education has passed very detailed regulations saying when you do and don’t have to integrate a sports team,” he explained. “It’s passed detailed regulations on under what conditions a school [can] offer sex-segregated classes. Those would otherwise be prohibited unless … authorized by the regulation,” he said.

Among the carve-outs for allowable sex-segregation under Title IX is a regulation dealing with restroom and locker room access, which is at the heart of cases like Grimm’s. And it’s that carve-out that has sparked the legal fight over trans rights at school.

“There is a long-standing regulation that says schools can have separate restrooms and can have locker rooms divided by sex,” said Block. “Now fast forward 40 years later and you have school districts saying that this regulation not only gives them permission to have boys’ and girls’ rooms, but it gives them permission to essentially banish transgender kids from those restrooms by saying they can’t use a restroom consistent with their gender identity.”

The legal landscape of trans student rights to access restrooms and locker rooms consistent with their gender identity has been shifting well before Grimm’s lawsuit. Since as early as 2009, schools in places like Maine and Illinois have faced lawsuits for prohibiting students from accessing restrooms and locker rooms consistent with their gender identity. Meanwhile, states like California and Colorado have provided affirmative protections for transgender students in the form of nondiscrimination laws so students can use restrooms and locker rooms consistent with their gender identity. But that means transgender students across the country are subject to a patchwork of legal protections that are not uniform across the country: A trans student in California has, at least in theory, more legal protections against discrimination at school than one in Mississippi. So for many trans students, Title IX is the only legal protection against discrimination they have.

Through a series of administrative actions, the Department of Education (DOE) since 2013 has tried to nudge reluctant school administrators toward understanding the difference between providing for sex-segregated facilities and using those facilities as justification for discriminating against transgender students. It has notified federally funded schools that failing to allow transgender students access to restrooms and locker rooms consistent with their gender identity will subject those schools to litigation and risk their federal funding. In other words, the DOE made explicit its interpretation of federal law: Schools may have sex-segregated facilities like restrooms, but they cannot determine on the basis of gender identity which students have access to which facilities.

Significantly, the Obama administration filed a friend-of-the-court brief in Grimm’s case, urging the federal appeals court to follow its lead on interpreting Title IX to protect against gender identity discrimination in schools. So far, both the district court and the Fourth Circuit Court of Appeals have listened to the administration, deferring to the federal agency on how best to interpret the regulations that agency publishes. Those rulings have been temporarily put on hold while the Gloucester School Board files its request to have the Roberts Court step in.

This brings us to the conservative Fifth Circuit Court of Appeals and the lawsuit filed by more than 20 states in May arguing that the Obama administration has overstepped its authority on this matter. It’s similar to the argument raised by Gloucester County in the Grimm case and rejected by the Fourth Circuit.

Raising those arguments in the conservative Fifth Circuit, the same federal appeals court that blocked the Obama administration’s executive action on deportations, is a strategic bet by conservatives that they can get a ruling in their favor. Such a ruling would create a likely circuit split, or disagreement, in the appellate courts—which is exactly the kind of situation the Supreme Court is set up to resolve.

Once again, Justice Anthony Kennedy is poised as the swing vote, the justice each side needs to rule in its favor. And while Kennedy has emerged as a moderate but leading voice in the jurisprudential recognition of LGBTQ rights, he has also been critical of some Obama administration agency action. Cases like Grimm’s, or whichever transgender rights case the Court eventually takes up, will present the ultimate test for Kennedy: Which matters more, his desire to see the “dignity” of the LGBTQ community advance in the law, or his distrust of executive authority—even if that executive authority advances LGBTQ dignity?

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