Justice
US refuses to say it won’t kill Assange
Wikileaks journalist remains imprisoned as US continues to pursue discredited extradition case – and refusal to give binding guarantee would result in his immediate release if UK justice system was fit for purpose
The US has refused to give a specific, binding guarantee to a UK court that it will not execute journalist and Wikileaks founder Julian Assange. Assange has been held for years in solitary confinement in Belmarsh prison while he fights the US government’s attempt to extradite him so it can imprison him for years beyond his lifespan, after Assange exposed war crimes in Iraq by the US military.
The case should have been laughed out of court three years ago, when the main US witness admitted he had been lying all along in his claim that Assange induced him to hack US systems. Instead, Assange has been submitted to what former UN Special Rapporteur on torture Nils Melzer described as sustained psychological torture – and still faces the likelihood of imprisonment for more than a century.
His recent appeal was adjourned to give the US time to affirm properly that it would not kill him if he was extradited, a sick joke when there has been longstanding evidence of US plans to murder him outside the US.
Incredibly, the High Court has refused to admit fresh evidence of CIA plots to kidnap or kill Julian Assange.
The judges say the rationale for kidnapping or killing Assange would be removed if he is extradited, and the evidence is thus not worth consideration.
Read that again. pic.twitter.com/PqwJIg4yAn— Declassified UK (@declassifiedUK) March 26, 2024
The judges even refused to admit fresh evidence of the US’s plans to assassinate Assange, instead offering the US another opportunity to have him in their hands if they would promise not to put him to death. The US.
But Assange’s wife Stella has revealed that the US has refused to say that it will not kill him and has offered only a boilerplate statement about the death penalty, while denying Assange the free speech protections it would offer to any US citizen:
The United States has issued a non-assurance in relation to the First Amendment, and a standard assurance in relation to the death penalty.
It makes no undertaking to withdraw the prosecution’s previous assertion that Julian has no First Amendment rights because he is not a U.S citizen. Instead, the US has limited itself to blatant weasel words claiming that Julian can “seek to raise” the First Amendment if extradited.
The diplomatic note does nothing to relieve our family’s extreme distress about his future – his grim expectation of spending the rest of his life in isolation in US prison for publishing award-winning journalism.
The Biden Administration must drop this dangerous prosecution before it is too late.
The US statement says the death penalty will be ‘neither sought nor imposed’, but this is non-binding and meaningless given its previous attempts to kill him. The refusal to guarantee there will be no death penalty in Assange’s specific case should mean under UK and European human rights laws that the extradition is immediately refused by the UK court and Assange should already be free. Even if the assurances had been given, the likelihood that the US’s treatment of Assange would lead to his death should be enough to quash the bid.
The fact that he is not yet free of the threat of extradition, let alone walking around in the freedom he should have, is a damning indictment of the state of UK justice and democracy.
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Lawsuit Links Wild UAE-Financed Smear Campaign to George Washington University
Once a well-respected public commentator and academic in his native Austria, Farid Hafez’s life slowly began to unravel after rumors spread that he was an affiliate of the Muslim Brotherhood — allegedly a sleeper agent promoting extremism in the country.
“I used to be published every month in newspapers from both the left and right. I had a high profile in Austria, and people took me seriously,” Hafez said. “But some years ago, people started calling me to tell me that there were rumors about me spreading behind closed doors. I felt there was a difference, and that something was changing.”
“Eventually,” he said, “I was sidelined to such an extent that newspapers would not even publish me anymore.”
“I was sidelined to such an extent that newspapers would not even publish me anymore.”
Hafez’s growing ostracism in Austria culminated in a controversial police operation in 2020 called Operation Luxor. Hafez and others were targeted with raids and asset seizures. Hafez ultimately left Austria for the United States, where he took up a visiting professorship at Williams College in Massachusetts.
Operation Luxor was later deemed unlawful by Austrian courts, and the police’s terrorism charges against Hafez were eventually dropped. Today, the case is widely viewed as a witch hunt that targeted Austrian Muslims. Despite his exoneration, the damage to Hafez’s life from the yearslong ordeal have been immense.
“A lot of this has basically been about destroying my reputation,” he said. “Everybody knew that I was affected by this, even far from Austria.”
Little did Hafez know at the time, but the rumors about him and others in Austria originated from a research center at George Washington University and a prominent U.S.-based terrorism analyst there named Lorenzo Vidino, according to a lawsuit filed late last month. Hafez’s suit alleges fraud and racketeering, asking for $10 million in damages from Vidino, along with George Washington University and its Program on Extremism, the research center that Vidino heads.
The lawsuit, according to a press release, alleges that Hafez and others were targets of an organized smear campaign, accusing Vidino of “participating in a criminal enterprise that deployed fake journalists, social media bots and pay-to-play reporters to destroy the careers of dozens of individuals by constructing and disseminating false narratives linking them to the Muslim Brotherhood.” (Vidino and George Washington University haven’t filed a response to the lawsuit, and neither replied to requests for comment.)
The campaign against Hafez exploited an environment of suspicion that can result in Muslim or Arab scholars being targeted, said an academic who works on anti-Islam bias, noting that such campaigns often fixate on people whose work touches on politically sensitive subjects.
Farid Hafez, now a professor at Williams University, at a panel on Islamophobia in Istanbul on Oct. 19, 2017.
Photo: Emrah Yorulmaz/Anadolu Agency/Getty Images
“Farid Hafez is not the first Muslim professor to be targeted by ideologues who seek to silence and censor scholarship on Islamophobia, or Palestine, or anti-Arab racism,” said Sahar Aziz, a national security expert and director of the Center for Security, Race, and Rights at Rutgers University. “In the U.S., individuals who are critical of U.S. policy in the Middle East are often slandered as un-American or disloyal. In direct contradiction of American principles of academic freedom and free speech, Islamophobic organizations and government officials seek to censor Arab and Muslim professors when they disagree with the substance of their scholarship.”
“Meanwhile,” Aziz added, “in Europe there is vilification of almost any Muslim individual or group that is politically active, such that their activities are conflated with support for terrorism.”
GWU’s Lorenzo Vidino
Vidino worked with a private investigation firm in Switzerland that covertly spread spurious allegations against various Muslims in Europe, accusing them of involvement in terrorism and extremism, according to a report last year in the New Yorker.
Many of the details in the New Yorker, which are repeated in part in Hafez’s lawsuit, became public when hackers leaked internal communications from the firm behind the campaign, known as Alp Services. The hackers sent the files from Alp, another defendant in Hafez’s suit, to one of its intended targets: an American citizen living in Italy named Hazem Nada, who alleged in a separate lawsuit that his company and personal reputation were tarnished by unfounded accusations of terrorist financing.
The leak suggested that the operation was being financed to the tune of millions of dollars by the United Arab Emirates government as part of a broader campaign to destroy perceived ideological enemies in Western countries, and particularly those it accused of ties to the Muslim Brotherhood. The UAE campaign reportedly targeted more than 1,000 people in 18 European countries.
Among those mentioned in the files as working with Alp was Vidino, who took a 3,000-euro consulting fee from the firm for “a series of gossipy reports about the Brotherhood’s reach,” according to a passage from the New Yorker quoted in Hafez’s lawsuit. The “gossipy reports,” which helped form the basis of the campaign on behalf of the UAE, appeared to consist of lists of suspected Islamists that Alp could then show it had discredited on behalf of its Emirati client. (Alp has neither responded to Hafez’s lawsuit nor a request for comment.)
In addition to his work with the Austrian government and George Washington University’s Program on Extremism, Vidino maintains public connections with think tanks based in the UAE, including the Abu Dhabi-based Hedayah, which is chaired by members of the royal family. Earlier in his career, he worked as a senior analyst at the Investigative Project on Terrorism, a think tank run by anti-Muslim activist Steve Emerson.
Lorenzo Vidino, of the George Washington University Program on Extremism, at a press conference following a meeting on radicalization with Italian officials in Rome on Jan. 5, 2017.
Photo: Riccardo De Luca/Anadolu Agency/Getty Images
Nada filed his separate lawsuit against the government of the UAE, Vidino, Alp Services, and several others alleged to have been involved in the smear campaign against him. The UAE-sponsored campaign, the suit says, triggered a series of events that ultimately led Nada’s oil trading company, Lord Energy, to declare bankruptcy.
Nada is seeking $2.7 billion in damages and compensation. In addition to ideological reasons for the campaign against him, Nada’s lawsuit alleges that the UAE, a major oil and gas producer, had commercial motivations when it hired Alp Services to help shut his firm out of competing in the global energy market.
“The enterprise’s sham accusations that Hazim and Lord Energy were involved in terrorist financing were meant to — and did — eliminate a commercial competitor by causing banks and financial institutions to stop lending to Hazim and Lord Energy and causing other industry participants to stop doing business with Hazim and Lord Energy,” Nada’s lawsuit says.
The defendants in Nada’s case have not responded directly to the allegations against them, either in court or in the press.
Luxor’s Toll
Hafez would seem like an unlikely target for a smear campaign. A well-respected academic researcher in Austria, his work focused on documenting and combating anti-Muslim racism in Europe. He was a co-author of the European Islamophobia Report, a scholarly annual analysis of anti-Muslim discrimination on the continent, and was affiliated with a Islamophobia research center based out of Georgetown University.
Starting in 2015, Vidino began appearing as a public commentator and later working as a consultant with the Austrian government, focusing on issues of political Islam and the Muslim Brotherhood. Hafez said his reputation began to suffer around the same time.
The Muslim Brotherhood is a political movement mostly based in the Arab states, which has often clashed with the conservative monarchies in the region. The movement has been suppressed in countries like Egypt but remains a bogeyman for local leaders as well as right-wing groups in Western countries who have frequently accused Muslim political opponents of association with the group.
Hafez felt himself gradually becoming the target of these attacks. The accusations were often put forward vaguely in public where individuals or organizations were accused of “affiliations” with the Muslim Brotherhood rather than holding any concrete roles or membership. The allegations were amorphous enough that they were impossible to refute, or even challenge, mostly disseminated as they were through whisper campaigns spread through the Austrian government and security establishment.
After the smears took hold, Operation Luxor came down on the night of November 9, 2020. Hundreds of armed police officers raided the homes of Hafez and dozens of others, along with institutions they were affiliated with.
The search warrant used to justify the raid was based on a report authored by Vidino about the Muslim Brotherhood in Austria. Vidino also served twice as a witness for the Austrian government against targets in the case.
The Austrian government at the time — led by right-wing Chancellor Sebastian Kurz — celebrated the raids as a blow to “political Islam.” Despite these claims, however, the operation ultimately failed to uncover evidence of terrorism or even generate any arrests and convictions.
Despite being eventually exonerated by Austrian courts, Hafez’s career and reputation suffered in Austria and his financial assets were frozen. He has suffered ongoing stress — along with his family, including his young children who remain traumatized by the armed raid on their house in 2020.
“In a way, what Vidino was enabling was the criminalization of critical scholarship about Islam and anti-Muslim racism in Europe.”
The lingering impact of the smear campaign and raid on his life have now led Hafez to seek relief from American courts against Vidino, George Washington University, and Alp Services. A press release about Hafez’s lawsuit said, “Vidino presented himself as a disinterested academic with an expertise on terrorist figures and groups, feeding the narrative to both legitimate reporters and pay-to-play journalists, fellow academics and think-tanks that Hafez was deeply connected to the Muslim Brotherhood.”
Hafez knew that Vidino was antagonistic to his work on behalf of Muslim communities in Austria. The New Yorker article and Nada’s lawsuit, however, had raised more troubling questions. Vidino had, according to Hafez’s lawsuit, acknowledged that he strongly suspected the payment from Alp was coming from the Emirates. Hafez’s lawsuit said, “Alp and Dr. Lorenzo Vidino (‘Dr. Vidino’), with the assistance of the other co-defendants, targeted Dr. Hafez and others similarly situated because they saw him as a means of keeping their UAE gravy train rolling and veracity was simply beside the point.”
Hafez’s lawsuit, in other words, raises the possibility that Vidino’s advocacy may not have been merely ideological but driven by financial incentives from the UAE.
“In a way, what Vidino was enabling was the criminalization of critical scholarship about Islam and anti-Muslim racism in Europe,” Hafez said. “But when I first started looking into him, I was focused on his ideological ties to the far-right in the United States. I assumed that he was an ideologically inspired person. I had no clue whatsoever that the UAE was behind his work, and maybe even the main driver.”
The post Lawsuit Links Wild UAE-Financed Smear Campaign to George Washington University appeared first on The Intercept.
Idaho Goes to the Supreme Court to Argue That Pregnant People Are Second-Class Citizens
In the early 1980s, doctors at Chicago’s Cook County Hospital faced an alarming trend: Thousands of patients from across the city were being transferred to the county facility, including patients whose conditions were unstable, making the transfers medically risky. Many patients ended up in the intensive care unit; others died.
Several years later, the New England Journal of Medicine published a study confirming that transfers had skyrocketed from roughly 1,300 in 1980 to nearly 7,000 in 1983. The study supported what doctors had observed, according to the Chicago Tribune: “that private hospitals in the area are shirking their duty to provide care to the needy.” Reviewing some 500 transfers from private medical facilities to the Cook County hospital over a one-month period, the study found that the vast majority of patients were unemployed, and many had been transferred because they lacked the means to pay for health care. Eighty-nine percent were Black or Hispanic, 24 percent were medically unstable, and just 6 percent had consented to transport.
The Chicago doctors weren’t alone. Across the country, the transfer practice, known as “patient dumping,” had become a serious problem, especially for those in labor. “This was a full-term baby who would have been alive right now if the system hadn’t shuffled the mother around,” one doctor told the San Francisco Examiner in 1985 about a patient in labor who arrived at an Oakland hospital after being turned away from two other facilities. The baby was stillborn. “When she walked in here, I knew immediately something was really wrong,” the obstetrician said. “She was doubled over, holding her belly.”
The problem became so grave that Congress stepped in, passing the Emergency Medical Treatment and Active Labor Act, known as EMTALA. Still in effect today, the law is straightforward: It requires all hospitals that receive certain federal funds to conduct a medical assessment of every patient who shows up at the ER and, in a medical emergency, provide necessary stabilizing treatment. The law defers to medical professionals to determine when a medical emergency exists and what stabilizing treatments are needed.
EMTALA operates as a “point of rescue,” said Nicole Huberfeld, a professor at Boston University’s schools of law and public health. “It is the one law that we have that makes it so that anyone can get access to care when they’re having a medical emergency.”
The End of Roe
For nearly 40 years, necessary stabilizing treatment under EMTALA has included abortion care. In July 2022, weeks after the U.S. Supreme Court overturned the right to abortion in Dobbs v. Jackson Women’s Health Organization, the Department of Health and Human Services posted a memo reiterating hospitals’ obligations under EMTALA. When a state had banned abortion but abortion was the stabilizing treatment a patient needed, the memo stated, EMTALA preempted the state law.
In a letter accompanying the guidance, Health Secretary Xavier Becerra assured providers that EMTALA “protects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice.”
“That’s the exact evil that Congress was trying to stop.”
But in a case pending before the Supreme Court, scheduled for oral arguments on April 24, Idaho claims that abortion is not protected under EMTALA, and that the federal government is interfering with state’s ability to ban the procedure. “The whole point of Dobbs was to restore to the states their authority to regulate abortion,” lawyers with the far-right Alliance Defending Freedom, who are representing Idaho, wrote in their brief. “Yet the administration seeks to thwart Idaho’s exercise of self-government on this important topic.” The claim that EMTALA covers abortion, they wrote, “is imaginary.”
If the court were to accept Idaho’s recasting of EMTALA, the safety-net law meant to eliminate discrimination in emergency medical care would be nullified, experts say, singling out pregnant people as a separate and unequal class of patients. Such a ruling would hobble the ability of medical professionals to respond appropriately to emergencies and encourage a new generation of patient dumping.
“Idaho’s arguments would make pregnant people second-class citizens in emergency rooms,” said Alexa Kolbi-Molinas, deputy director of the reproductive freedom project at the American Civil Liberties Union. “That’s the exact evil that Congress was trying to stop.”
Associate Attorney General Vanita Gupta looks on as Attorney General Merrick Garland announces the Justice Department’s lawsuit seeking to block Idaho’s abortion ban on Aug. 2, 2022.
Photo: Drew Angerer/Getty Images
In the wake of the Supreme Court’s decision to overturn Roe v. Wade, near-total abortion bans quickly took effect in several states, including Idaho, where the so-called Defense of Life Act bans all abortions save for those necessary to prevent the death of the pregnant person. During a legislative hearing on the measure in 2020, the law’s sponsor, state Sen. Todd Lakey, said the law included no exception for the broader health of the pregnant person because that was not as important as the life of the fetus. “I would say it weighs less, yes, then the life of the child,” he said.
“If we’re talking health of the mother, that’s a nuanced decision that could be something much less than life,” Lakey said. “If the decision was based solely on a question of some type of health, then you’re talking about taking the life of the unborn child, so that weighs more heavily than simply ‘health.’”
Idaho’s ban has placed health care providers in a precarious position. Violations of EMTALA’s mandate can result in hefty fines for doctors and hospitals and the loss of federal funding that facilities use to treat elderly patients and people with disabilities. Doctors who violate Idaho’s abortion ban, meanwhile, face criminal prosecution, two to five years in prison for each offense, and loss of their medical license.
The narrowness of the exception to Idaho’s ban prompted the federal government to sue the state in August 2022, arguing that the law impermissibly conflicts with EMTALA’s requirement that providers treat “emergency medical conditions,” not only those that pose “risks to life,” but also conditions that place a person’s health in “serious jeopardy.” The text of EMTALA clearly states that where conflicts with state law exist, the federal law takes precedence.
The government asked a federal district court to immediately block Idaho’s law from taking effect while the lawsuit was ongoing. The court agreed, enjoining the Idaho ban “to the extent that statute conflicts with EMTALA-mandated care.”
Idaho appealed the ruling and lost, prompting the state to ask the Supreme Court to intervene, which it did in January, lifting the district court injunction and scheduling the case for oral arguments.
In legal filings, Idaho points out that the word “abortion” is not included in the EMTALA statute, claiming there was no understanding that Congress meant to include abortion care among potential stabilizing treatments required under the law. In contrast, the statute does include the phrase “unborn child,” which according to the state, means that the well-being of the fetus must be weighed in addressing medical emergencies.
Idaho law doesn’t conflict with EMTALA at all, the lawyers argue, because Idaho regulates the practice of medicine in the state. EMTALA only requires doctors to provide stabilizing treatments that are “available” at a given hospital, and since abortion is illegal, it is thus unavailable. And because abortion is unavailable in Idaho, a hospital could legally transfer a patient somewhere else for care, presumably without being accused of dumping. Practically speaking, that would mean coordinating a transfer to a facility out of state and hours away.
Idaho claims the Department of Health and Human Services’ 2022 guidance was merely an attempt to legalize all abortion in the state. “A patient who wanted, but was denied, an abortion cannot wield EMTALA to force an emergency room to perform one,” reads the lawyers’ Supreme Court brief.
Huberfeld, the health law expert, who along with several other legal scholars filed an amicus brief supporting the federal government’s position, says Idaho is misinterpreting the law. EMTALA doesn’t contain the word “abortion” because, at the urging of medical professionals, Congress left the menu of stabilizing treatments to their discretion. At the time of EMTALA’s passage, abortion was protected care, and even states that had banned the procedure later in pregnancy included exceptions for the life and health of the pregnant person. Physicians have long “acknowledged their statutory obligation to provide abortion care in those rare emergencies in which terminating a pregnancy is the necessary ‘stabilizing’ treatment,” Huberfeld and her colleagues wrote.
The reference to an “unborn child,” meanwhile, is defined in the EMTALA statute — just not in the way that Idaho claims. “Three of the four mentions are specifically about taking into account the risks to the unborn child during labor when transferring a patient to another hospital,” said Kolbi-Molinas of the ACLU, which also filed an amicus brief in support of the federal government. The fourth mention is meant to ensure that a pregnant person in the ER will receive care for a pregnancy-related problem that is not currently placing their own life at risk. “So the hospital couldn’t say, ‘Well, you’re fine, so we’re just going to let your baby die,’” Kolbi-Molinas explained.
Those references are important, according to Huberfeld, because before EMTALA, hospitals were abandoning pregnant people in alarming numbers. “There were so many instances of people in labor being turned away from emergency departments and they and/or their newborns dying,” she said. “It was specifically addressed because the circumstances of patient dumping for people in labor were so egregious.”
For Idaho to suggest that Congress actually meant to shield hospitals from having to address the medical needs of pregnant people in favor of protecting the fetus “is like gaslighting,” Kolbi-Molinas said.
And the argument that state hospitals don’t have to provide emergency abortion care because Idaho regulates the practice of medicine turns EMTALA on its head. Huberfeld thinks the argument is bait meant to attract justices inclined to embrace the notion of state sovereignty. But EMTALA is tied to Medicare funding, she said, which hospitals do not have to accept. If they do, the funds come with strings — including EMTALA’s nondiscrimination guarantee. The law was designed to create “a national standard” because states were routinely discriminating against patients, leaving a patchwork of unequal care, Huberfeld said. “It’s the state variability that predictably leads to worse health outcomes for certain populations.”
From left to right: Anna Zargarian, Lauren Miller, Lauren Hall, and Amanda Zurawski at the Texas Capitol on March 7, 2023, after filing a lawsuit on behalf of Texans harmed by the state’s abortion ban.
Photo: Rick Kern/Getty Images
Since the fall of Roe, stories of women being denied abortions during medical emergencies have become distressingly common, making clear that the scant exceptions in state bans are not enough to keep pregnant patients safe.
Such cruelty has been on regular display in Texas, including in the case of Amanda Zurawski, who nearly died twice and whose future fertility has been imperiled because of the state’s abortion ban. Zurawski’s water broke early, and the demise of her fetus was inevitable, but because Texas’s ban contained only vague language regarding medical emergencies, doctors said they had to wait until she was on death’s door to provide the abortion she needed.
Zurawski is one of several women who have sued Texas seeking to clarify the ban’s exceptions. The state has resisted, claiming the language is clear and that it’s doctors who are confused. Zurawski and 16 other women also signed on to an amicus brief in the EMTALA case as “living proof of the inadequacy of state law, which endangered rather than protected their lives.”
ERs are “discharging pregnant patients in medical emergencies, telling them to wait elsewhere until their health deteriorates.”
Meanwhile, Texas has also been fighting the federal government to limit EMTALA’s protections. But instead of being sued by the government, as Idaho was, Texas sued first.
Just three days after HHS posted its 2022 guidance, the state filed suit in the Texas Panhandle, where the case was certain to wind up before a Trump-appointed judge thanks to the quirks of the federal court system. Texas argued that the guidance was a blatant effort to create new law out of whole cloth that would “transform every emergency room in the country into a walk-in abortion clinic.”
The EMTALA guidance was hardly new, the government responded, and did nothing more than reinforce provider obligations under the law as written. Arguing that the case should be thrown out, the government noted that the state’s post-Roe abortion ban had yet to take effect — meaning Texas had no grounds to sue. The state’s wild claims that the government was somehow trying to mandate elective abortions was “a patent misreading of the guidance that bears no resemblance to reality.”
Nonetheless, the federal district court sided with Texas, and the 5th U.S. Circuit Court of Appeals agreed, effectively blocking the full protection of EMTALA in the state. How the Supreme Court rules in the Idaho case could also determine the outcome in Texas.
Related
Anti-Abortion Doctors Struggle to Explain Mifepristone Harms Before Supreme Court
Texas was joined in the lawsuit by two groups of anti-abortion doctors who previously filed a federal suit in the Panhandle challenging the Food and Drug Administration’s approval of the abortion drug mifepristone. As in that case, the doctors in the EMTALA lawsuit alleged that the federal government’s guidance might at some point conscript them into participating in an abortion in violation of their conscience. The Supreme Court, which heard oral arguments in the mifepristone case last month, seemed to doubt that the doctors’ dubious claims offered them legal standing to sue.
In the meantime, as Zurawski and others argue in their Idaho case brief, by denying pregnant people EMTALA protections, states with abortion bans are creating the very kind of discriminatory care that the law was meant to eradicate: “Emergency rooms are discharging pregnant patients in medical emergencies, telling them to wait elsewhere until their health deteriorates.”
While the Idaho Supreme Court has blessed the state’s abortion ban, claiming that it provides wide latitude for doctors to exercise their judgment, the broader political climate in the state is sending a more menacing message, according to the Idaho Coalition for Safe Healthcare.
Lawmakers have tried to insert fetal personhood language into state law and threatened to withhold funding from Boise after city officials said they would not prioritize enforcement of the abortion ban. The state’s attorney general said medical professionals who “assist” in abortion — even by referring someone to out-of-state care — could be prosecuted under the ban. As the number of preventable maternal deaths rose, the state disbanded its Maternal Mortality Review Committee. A group of so-called Freedom Caucus lawmakers penned a threatening letter to hospitals demanding to see abortion records.
A “culture of fear” has settled over the state’s medical professionals, said Dr. Caitlin Gustafson, a family medicine doctor trained in obstetrics and a member of the Idaho coalition. “We have targets on our backs for providing care in the moment that somebody is going to second guess,” she said. “It’s just untenable.”
“We have targets on our backs for providing care.”
Idaho is losing doctors at an alarming rate. Nearly 60 obstetricians stopped providing care in the 15 months following the ban’s imposition, and five of the state’s nine maternal fetal medicine doctors have left the state. Two hospital obstetrics programs have closed, and another is on the brink of closure, because hospitals could not recruit enough doctors to staff them.
Practicing in a rural community, Gustafson feels the weight of the state’s abortion ban, not only as a conflict with her duty to care for pregnant patients, but also for its impact on patients in need of other services. She said she’d just gotten word that another OB-GYN who provided consultation for rural patients was leaving the state, meaning that patients in need of routine services — hysterectomies, for example, or consultation for a “cancer scare” — will be forced to travel hundreds of miles for care. “We’re losing everything,” she said.
Gustafson has always recommended that her pregnant patients in rural areas carry “life flight” insurance in case they need emergency transportation to Boise. Now, she said, doctors across the state are recommending that all pregnant patients carry such insurance in case an emergency arises and they need to be transported out of state. “‘You mean if X, Y, or Z happens, I would have to go to Utah?’” she said patients have asked her. “‘I have two children at home. I have no family there, and I’m going to fly to a city I don’t know, and to doctors I don’t know, and that’s what you’re telling me is my only option?’”
“The level of financial, personal strain and distress this is creating and the inequality by default is tremendous,” Gustafson said. “It feels very unfair.”
Health care providers are trained to intervene in emergencies “to head off the risk of injury, illness, and death,” Huberfeld said, not to “wait until some is on death’s door to help them.” Idaho’s interpretation of EMTALA “is the exact opposite of what the law is supposed to do.”
The post Idaho Goes to the Supreme Court to Argue That Pregnant People Are Second-Class Citizens appeared first on The Intercept.
Israeli media: Israel ‘totally defeated’ – and terrified of Iran
Source close to discussions about Iran says millions would be fleeing Israel if they knew what was being said
Israeli media are often far more honest about what their country is doing – and what is going on in it – than western ‘mainstream’ media are about the same issues. While UK ‘msm’ still maintain the lie that Hamas ‘beheaded babies’ and raped women on 7 October, Israeli media sometimes freely discuss the truth – and frequently and openly write about the ‘immense’ numbers of Israelis killed that day by the Israeli military.
And now, Israeli media are discussing two further truths that will not be aired by UK broadcasters or printed by UK papers.
First, Haaretz – one of Israel’s major dailies – has splashed a headline concluding that Israel has lost – totally lost – the ‘war’, the genocide, it has been raining down on the innocent civilians of Gaza. Lost so badly that Israel cannot be secure – and will not either regain by force the captives taken by Hamas, or end its pariah status:
And second, journalists with sources close to the Israeli regime’s discussions about Iran – which yesterday achieved a measured but compelling attack on Israel in retaliation for Israel’s bombing of Iran’s consulate in Damascus – are saying openly that those discussions are so terrifying that if the Israeli populace knew what was being said, millions of them would be flooding Israel’s main international airport to try to get out of the country:
The UK government, opposition and media are incorrigibly dishonest about Israel’s genocide and its terrible consequences for the millions of innocents in Gaza and the West Bank – and the ruination of both Israel’s and the West’s always-thin pretence as democratic, humane and law-abiding. But the truth is out there – and will percolate through.
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Pro-Lifers Are Up Against a Real-Life Crisis
Patients, infertility doctors, and advocates of IVF attend a rally outside the Alabama State House on Feb. 28, 2024, in Montgomery, Ala.
Photo: Stew Milne/AP
When the Alabama Supreme Court ruled that fertilized embryos were “extrauterine children,” it did more than imperil the future of in vitro fertilization in Alabama and, potentially, the U.S.
The ruling, on the claimed “wrongful death” of frozen embryos in an accident at a fertility clinic, heightened the conflict between ideology and electability, already about as high as it could get after June 2022, when Dobbs v. Jackson Women’s Health Organization freed the states to snub overwhelming public opinion, enact radical abortion bans — and then lose badly in the midterms.
But now the ideologues have more than a political problem. They have a moral one too.
When most of Alabama’s fertility clinics suspended operations in fear that dropping a vial might be prosecuted as manslaughter and patients were left anguished in the middle of time-sensitive treatments, the GOP faced the present, palpable harms inflicted on real people by its abstract religious pieties. And these harmed parties were not baby killers. They were among the 1 in 7 women afflicted by infertility, and they were desperate to have babies.
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Alabama Court Rules Frozen Embryos Made by IVF Are “Children”
The predicament landed hard. As the national press closed in on the Alabama Legislature, its panicked Republican supermajority hurried through a bill giving full legal and criminal immunity to IVF providers for the death or destruction of embryos. The bill passed the House by a vote of 94 to 6, including most of the chamber’s 27 Democrats, and unanimously in the Senate. Some Democrats objected that the blanket immunity exposed patients to malpractice without recourse, while Republican opponents still wanted protection for the embryos. The GOP’s state PAC defended supporters as casting “a pro-life vote.”
The more radical elements of Alabama’s “pro-life” community did not agree. The American Action Fund posted a petition on Facebook attacking Republican lawmakers who “voted to give immunity to any IVF provider who ‘intentionally causes the death of an unborn child,’” putting quotation marks around a phrase that is not in the statute and pressing for repeal. D.J. Parten, founder of a group that crafted legislation to prosecute self-managed abortion as murder, called the IVF legislation the “immunity for murder” bill. Eric Johnston, president of the Alabama Pro-Life Coalition and author of the state’s abortion ban, told AL.com that he’d contacted the Senate pro tempore to work out the next steps, which sounded like a reversal. “If [embryos] are destroyed,” Johnston said, “there needs to be some repercussions for that.” Then what for IVF? He didn’t say.
And while the Republicans were busy biting each other’s backs, Democratic candidate Marilyn Lands walked away with a special election for a vacant state House seat. Having focused her campaign on abortion rights, she added the threat to IVF. On March 26, she beat her opponent 2 to 1.
The End of Roe
The battle moved north to Capitol Hill. Illinois Democratic Sen. Tammy Duckworth introduced a bill to protect “access to assisted reproductive technology, and all medical care surrounding such technology.” A Republican senator blocked the bill because it imperiled embryos, and it died on the floor.
House Republicans released a 2025 budget containing the Life at Conception Act, which would grant full legal rights “from the moment of fertilization.” It had 120 sponsors. The Senate version made an exception for IVF, but the senators couldn’t sway the lower chamber. The Republican National Committee urged candidates to come out strongly for fertility care.
Conflict churned, not just between religious morality and political reality, but also between Republicans crusading to deregulate everything public — from greenhouse gas emissions to payday lenders — and Republicans pouring their hearts and political capital into regulating everything personal, particularly what people do with their bodies.
At least one prominent player tried to split the difference. The fiercely anti-regulation Heritage Foundation released a position paper titled “Why the IVF Industry Must Be Regulated.”
“You cannot support IVF and support fetal personhood. … You are not fooling anyone.”
Unsurprisingly, it is a weird document. “The well-being of children, not profit margins, should be the top priority when it comes to IVF and embryonic cryopreservation,” proclaims the writer, senior research associate Emma Waters, sounding like a perfect socialist-feminist. She goes on to decry preimplantation testing for heritable conditions, which disability justice advocates also oppose, and preselection for sex or eye or skin color, which many feminists of color and critics of human genetic engineering condemn. Waters refers to these practices, provided by the majority of U.S. fertility clinics, as “eugenics,” which they are.
The paper proposes regulations including “true informed consent,” based on full explication of the risks and success rates of the treatment, and the prohibition of embryonic genetic testing and sex selection “in pursuit of the ‘perfect’ child” — regulations common throughout the EU and the U.K.
But if Europe promulgates rules to protect patients and children born through reproductive technologies, the children whose well-being most concerns the Heritage Foundation are the unborn ones. The paper’s first recommendation not-so-obliquely endorses embryonic personhood: “Impose a standard of care in IVF clinics sufficient to prevent the wanton or careless destruction of embryonic human beings.” Waters praises the Alabama judge, whose ruling “reassures parents who rely on IVF that their children will receive the same legal protections as everyone else’s.”
Alas, even a pro-regulation encyclical from the mother church of deregulation did not resolve the GOP’s dilemma. Sen. Patty Murray, D-Wash., put it succinctly: “You cannot support IVF and support fetal personhood laws. They are fundamentally incompatible!” she said. “You are not fooling anyone.”
Aside from the Heritage Foundation, there is another group of pro-lifers who believe they can have it both ways. That is, the practitioners of embryo adoption, a small but growing niche occupying the space where the fertility and adoption industries meet, inside a community populated almost entirely by evangelical Christians. The embryo adoption communities both condone IVF out of compassion for the infertile and are working to liberate, one by one, the treatments’ leftover embryos, which Catholic bioethicist Kent Lasnoski describes as the “frozen generation” and Baptist preacher John Piper calls the “orphaned unborn.”
These agencies match donors who’ve been through IVF and have unused fertilized embryos with would-be parents, most of whom have already tried and failed in multiple rounds of IVF, fostering, and/or traditional child adoption. The agents interview and screen both sides, suggest propitious pairings, and facilitate the delivery and implantation — called transfer — of the thawed frozen embryos. Some programs are all-inclusive, with their own clinics and home study experts; others offer services a la carte and recommend outside providers. Donors are not paid, yet the exchange promises them the satisfaction and security, and perhaps the relief from guilt, of giving their “children” a good home. Recipients get a bespoke baby, selected for genetic health, sex, race, and other characteristics, plus the experience of pregnancy, birth, breastfeeding, and “early bonding.”
But the agents do not view themselves only as individual adoption brokers. They are missionaries: rescue teams searching out “snowflake babies” shivering in cryostorage and bringing them into the warmth and shelter of womb, family, and church. “Just as each snowflake is frozen, unique and a gift from heaven, so are each of our Snowflakes Babies,” explains the Snowflakes Embryo Adoption Program, founded in 1997 by the Christian adoption nonprofit Nightline. “We hope to help each donated embryo grow, develop, and live a full life. In the intricate design of each flake of snow, we find the Creator reflecting the individual human heart.”
And if it doesn’t work, if an embryo dies while thawing or a pregnancy ends in miscarriage — even if a couple never ends up with a child — all is understood as God’s plan. “If God puts it on our heart to adopt a child, we know that one doesn’t always come home,” one would-be mother told the anthropologist Risa Cromer.
In “Conceiving Christian America: Embryo Adoption and Reproductive Politics,” Cromer calls this “embryo saviorism,” whose ultimate aim is to build the material and spiritual infrastructure “to leverage a niche family-making process for realizing the potential for a conservative Christian country.” And not just Christian. The website photo galleries feature healthy, unambiguously gendered children surrounding coupled, unambiguously heterosexual parents (at the National Embryo Donation Center, adopters must be “a genetic male and a genetic female married for at least three years”). And although women of color suffer far higher rates of infertility than their white counterparts, these families are almost all as white as Easter lilies.
Christian embryo adoption appears to be the embodiment of the anti-abortion slogan “Love them both,” mother and child. But the interests of parents and children, or parents and fetuses or embryos, are not always identical — they are sometimes in mortal battle. Nor can the born and the “unborn” have equal rights. “There is no way to add fertilized eggs, embryos, and fetuses to the Constitution without subtracting women,” says reproductive justice attorney and advocate Lynn Paltrow in the film “Personhood: Policing Pregnant Women in America.”
The IVF-embryonic personhood debate has taught Republicans that you sometimes have to choose a side.
Embryo adoption grew out of the anti-abortion movement. It found a fortuitous place where the adult’s needs and desires and the embryo’s survival are not at odds. But that does not mean it is neutral when it comes to adult needs and desires that clash with the embryo’s. In the 1990s, embryo adopters joined the National Right to Life Committee in lobbying against stem-cell research because it could result in the destruction of fertilized embryos. They continued to push throughout the 2000 elections and beyond, even as public opinion shifted toward valuing potential cures over potential life. In 2006, a group of “snowflake families” stood beside President George W. Bush when he vetoed a bipartisan bill to restore federal funding to the research. Prominent among the families were John and Marlene Strege and their child Hannah, the first “snowflake baby,” born on New Year’s Eve, 1998.
The Streges are still taking sides. In 2021, the family — identified as Hannah S., “a former IVF frozen embryo,” and John and Marlene S., “adoptive parents of the first ‘adopted’ frozen embryo in America” — filed an amicus brief in Dobbs supporting Mississippi’s 15-week abortion ban. Faster than anyone expected, the Supreme Court’s ruling set the U.S. moving toward a time when cells in petri dishes have more rights than the people whose bodies give them life. And when we get there, not even the hand of God will be able to unlock access to the medical procedures and products that allow millions to exercise their human right to have a baby — or not.
The post Pro-Lifers Are Up Against a Real-Life Crisis appeared first on The Intercept.
NYC Jails Flagrantly Deny Young People’s Legal Right to Education
Last June, New York City Mayor Eric Adams spoke to graduates at Rikers Island who received their high-school-equivalence diplomas while serving in jail.
“When you get your diplomas today,” Adams told the graduates, “I want you to stand up, lean back, be firm and strong and say, ‘I got this. When does the hard part start? I’m finished with the hard part. Now I’m moving forward to my destiny on what I want to accomplish.’”
The group represented the successful fruits of a law that guarantees access to education to people incarcerated in city jails. The success stories, however, are only part of the picture.
Other young people incarcerated in New York jails said in court filings that they’ve been repeatedly denied their legal right to education and that the city has failed to comply with a 2016 court order requiring education access for people between 18 and 21 held in in Department of Correction custody. In filings Wednesday, the plaintiffs in a decadeslong class-action suit against the city called for the appointment of a new court monitor to oversee implementation of the order.
“Not only is this a legal failing, but it’s a moral failing.”
“Not only is this a legal failing, but it’s a moral failing,” said Lauren Stephens-Davidowitz, a staff attorney with the Prisoners’ Rights Project at the Legal Aid Society, a public defense organization, which made the Wednesday filings. “You have these young people who are begging to get their high school education while they’re incarcerated, and are just trying so hard, and are being denied it.”
The original 1996 suit claimed that the city Department of Correction and the Department of Education failed to provide education to young people entitled to public schooling. Plaintiffs are now alleging that the city has failed to comply with a 2016 federal court order requiring that incarcerated young people be given access to a minimum of three hours of educational services each day. The order also required provision of special education services to people who needed them.
Class members include 29 people in New York City custody between the ages of 18 and 21 who don’t currently have a high school diploma. Declarations from class members provided to The Intercept document alleged violations of the 2016 court order, including claims that they’ve been told they can only receive education if they’re housed in certain programmatic facilities. (The Department of Education referred questions to the Department of Correction. The mayor’s office did not provide a comment.)
By keeping people from accessing legally required educational services, the Department of Correction is working against its professed goal of rehabilitation, said Stefen Short, a supervising attorney with the Prisoner’s Rights Project.
“It’s proven that when an individual attains their high school diploma or the equivalent in custody, their prospects for success improve on the outside,” Short said. “DOC is essentially letting folks sit idle rather than provide them with access to educational services to which they have a right. That renders everyone in the jail setting less safe. It’s a strange state of affairs. It doesn’t serve anyone’s interests.”
A spokesperson for the Department of Correction referred questions about the legal filing to the city’s Law Department, which represents the mayor and city agencies, and has not responded.
“The department has just received additional funding for programming for people in custody,” said the Correction spokesperson, Annais Morales, said, adding that the funds would allow for programs including general education diploma preparation and “tutoring for all people in custody.”
Last Chance for a Diploma
The court appointed a monitor in 2016 to oversee the city’s implementation of the order. In his third report in 2018, as his two-year term was winding down, the monitor found that the order was working for younger detainees, who were being phased out of the adult criminal system under a 2018 city law and were no longer part of the class, but not for people over the age of 18.
“While the education program at Rikers has shown marked improvements during the past two years, access to education for inmates age 18 to 21 is a persistent problem,” the report said.
Only people incarcerated in special Department of Correction program housing have access to education services. Detainees don’t have a choice in where they’re housed, and people in non-program housing have said they’ve requested access to education and been denied.
At a November meeting of the city’s Board of Correction, a nine-member oversight body, Correction Department Deputy Commissioner Francis Torres said the department provided educational services at only two facilities: the Robert N. Davoren Complex and the Rose M. Singer Center. “For this year, we have targeted our educational efforts, meaning granting access to educational services at RNDC and Rose M. Singer,” Torres said.
One incarcerated person, who needs special education services and submitted a declaration as part of the new filing Wednesday, said he had lost nearly a year of progress toward his diploma during the Covid-19 pandemic and was still being denied access to education.
“I need my special education services in order to make educational progress,” the incarcerated man said. “I am not getting the three hours of education per day that I am entitled to.”
The man, who said he was interested in vocational training in carpentry, computers, or cybersecurity, added, “I want to seize every opportunity I can to prepare for a better future.”
An incarcerated 19-year-old who received special education services prior to being in jail custody said Department of Correction staff told him he had to wait to receive education services until he was transferred to a different complex. When he got there, he said staff told him he couldn’t enroll in education services because he wasn’t in a school dorm.
“I was worried that I would not be safe in another housing area,” he said. “I did not think it was fair that I had to choose between school and safety.”
When an incarcerated person turns 22, they age out of the right to get education while in jail. “This is the last chance they have to get a high school education,” said Stephens-Davidowitz, the Legal Aid attorney. “This is a critical juncture in their lives. They have a right to do it, and they’re trying.”
Update: April 4, 2024, 2:30 p.m. ET
This story has been updated to include a comment from the New York City Department of Correction received after publication.
The post NYC Jails Flagrantly Deny Young People’s Legal Right to Education appeared first on The Intercept.
“Crime Has Been a Euphemism for Race”: Alameda County’s Reform DA Rejects Recall Narrative
What is now a multimillion-dollar campaign to recall the elected prosecutor in Alameda County, California, began just six months after she took office.
When Pamela Price won office in 2022, she became the first district attorney in Alameda County, which includes Oakland, in decades who hadn’t risen through the ranks of the DA’s office. Instead, Price was a former defense and civil rights attorney focused on reforming the criminal justice system and holding police accountable for misconduct.
Now, with the recall effort against her gaining steam, Price is calling out the double standard against her office, denouncing the focus on crime as the perpetuation of a racist trope.
“There is obviously no place where racism has been so accepted than in the criminal justice system,” she said. “When we talk about crime in America — for decades, if not centuries — crime has been a euphemism for race. And to be afraid of crime is synonymous often for many people with being afraid of Black people or being afraid of brown people.”
Police unions spent heavily against Price in 2018, when she first took on her predecessor, Nancy O’Malley, who had held office for a decade without facing a challenger. In June, a grand jury found that O’Malley violated county policies during the 2018 election by soliciting campaign funds from police unions.
Price lost to O’Malley in 2018 but beat one of her deputies in 2022 to become the first Black woman to serve as Alameda County’s district attorney.
It was under O’Malley’s tenure that homicides in Oakland first spiked, but Price’s opponents say they want to recall her because her reform policies have driven crime in the city, one of the 14 cities in the county. Price told The Intercept that those behind the recall campaign did not take the same tack against O’Malley when crime rose during her time in office — and that some of the cases she is being blamed for were handled by O’Malley.
Price acknowledged that violence remains an issue that she wants to tackle in office and said her policies are designed to allocate more resources toward the most serious crimes. She said, however, she has a problem with the way O’Malley never received the same scrutiny, criticism, or vitriol about crime during her tenure.
“If you did not hold Nancy O’Malley accountable, it is not fair for you to now be in the public eye suggesting to the public that I’m doing something wrong,” Price said. (O’Malley did not respond to a request for comment.)
O’Malley had been repeatedly accused of misconduct by defense lawyers. In one case, a judge knocked down the objections, but in another, charges were dismissed because of misconduct by O’Malley’s office. In 2021, a report from the ACLU of Northern California and Urban Peace Movement took the DA’s office to task for policies that resulted in “over-incarceration and criminalization” — particularly of Black and brown communities. O’Malley was also criticized for going easy on police and not investigating deaths of people in police custody.
Police and real estate investors bankrolling the recall push against Price have been among the reform DA’s most vocal and powerful opponents. That opposition has been long in the making, since Price’s 2018 campaign against O’Malley.
Things kicked into high gear after Price took office last year. The Oakland Police Officers’ Association has blamed her for crime and attacked her for charging police with misconduct. In April, Price charged an Oakland Police officer with perjury and threatening a witness in a wrongful conviction case. The union said the case was an attempt to undermine the credibility of police “and facilitate the release of convicted murderers.”
“My predecessor was the district attorney for 13 years. I haven’t seen anyone make a correlation between her policies and the rise and fall of crime.”
Under O’Malley, homicides in Oakland first climbed in 2012. Homicides fell and rose throughout O’Malley’s tenure and began to rise again in 2019, followed by another spike in 2020 amid the Covid-19 pandemic that affected cities and rural areas around the country. O’Malley announced her retirement in 2021 and left office in 2022, just before Price took office. Oakland homicides stayed level during Price’s first year on the job.
“My predecessor was the district attorney for 13 years,” Price said. “I haven’t seen anyone make a correlation between her policies and the rise and fall of crime.”
Oakland Real Estate Interests
O’Malley had also faced a recall effort, but not because of rising homicides in Oakland. The push, which received little attention and did not go to a vote, started after O’Malley declined to prosecute one public transit officer who knelt on 22-year-old Oscar Grant’s neck before another officer shot and killed him in 2009. For her part, O’Malley is supporting the current recall effort against Price and gave $5,000 to the effort.
Supporters of the recall effort against Price, including several wearing Make America Great Again hats, rallied at the county courthouse earlier this month on the deadline to submit petition signatures to get the recall on the ballot. County election officials are still manually counting the signatures and expect a result by April 15. Price and her supporters have accused recall leaders of paying hundreds of thousands of dollars to gather signatures and recruiting people who don’t live in the county to canvass for signatures.
Two committees are leading the recall push. The first, Save Alameda for Everyone, was launched in July by Oakland residents Brenda Grisham, whose son was killed in a shooting in 2010, and Carl Chan, who is the president of the Oakland Chinatown Chamber of Commerce. The recall committee has also paid thousands of dollars to Grisham’s own security company. (Grisham told the press the payment was a reimbursement for security costs.)
Grisham told The Intercept that she has never blamed Price for her son’s case. Her reasons for wanting to recall the DA stem from Price ignoring victims and releasing murderers. Grisham denied allegations that signatures had been improperly collected and said there was no rule that canvassers had to be from the county. She said she was confident the committee had enough valid signatures to get the recall on the ballot.
Grisham said she started planning the recall effort in June or July and that it shouldn’t matter who is funding the effort because they’re citizens of the county.
Among those backers was hedge fund partner and Oakland resident Philip Dreyfuss, who worked with Grisham and Chan before launching a second separate committee in September, Supporters of Recall of Pamela Price. He is one of the biggest individual donors to the committee and has given $390,000 so far, more than half of the money it raised last year. Dreyfuss also gave $10,000 to support the recall of former San Francisco DA Chesa Boudin in 2022. (Dreyfuss did not respond to a request for comment.)
National media outlets have framed the push to recall Price as part of a dispute over approaches to criminal justice reform. Price acknowledged that was true, but also said the fight in Alameda County is being driven by other motives, including wealthy investors who want to protect real estate interests in downtown Oakland.
Mass incarceration in California has been a failed strategy, Price said. Prosecutors in the reform movement are opposed to racism and racist policies in the criminal justice system, including mass incarceration and injustices imposed on both survivors of crime and defendants.
“Unfortunately,” Price said, “there are many in this arena who are not opposed to the racial inequities that have infected this system.”
Price pointed to her duty to the whole county, not just Oakland. “I’m the district attorney of Alameda County,” she said. “And any policies or practices that we implement are implemented and practiced across the county.”
“Unfortunately, there are many in this arena who are not opposed to the racial inequities that have infected this system.”
Price has lived in Oakland since 1978, during which time she said the city has always been portrayed in a negative light compared to others in the Bay Area. At the same time, she said, Oakland has been traumatized by gun violence that mass incarceration has not solved.
“People have always denigrated Oakland,” she said. “Now I think there’s the racism associated with putting my face as the Black face of Oakland, when in fact I’m not the mayor of Oakland, I’m not the police chief of Oakland. But it serves a purpose.”
Price added that if the people leading the recall truly cared about victims, they’d use their money to support victims in Alameda County.
“The primary backers and funders of the recall are, in fact, real estate developers and investors that have no real interest in the manner in which justice is administered to the majority of people who live, work, and play in Alameda County,” Price said. “They are a handful of wealthy folks that have as their agenda to control the way that the district attorney’s office operates. They could care less about the victims that we deal with every day.”
“The amount of money that they are prepared to spend to recall me could easily replenish the trauma recovery fund that the state is having to shut down because we don’t have any more funding.”
San Francisco District Attorney Chesa Boudin speaks to supporters during an election night event on June 7, 2022, just ahead of results that showed him being recalled as the as city’s top prosecutor.
Photo: Justin Sullivan/Getty Images
The San Fran Playbook
Opponents of the recall push have also pointed to overlaps in donors and messaging between the campaign against Price and the campaign to recall Boudin in San Francisco in 2022. Boudin’s replacement, Brooke Jenkins, has also come under fire for not disclosing payments she received from groups linked to the SF recall campaign prior to her appointment. Violent crime has increased under Jenkins, but the reaction from Boudin’s critics has been muted.
Jenkins’s current term ends in 2025. She already has a challenger, Ryan Khojasteh, an alum of Boudin’s office who Jenkins fired shortly after she was appointed. After being let go, Khojasteh went to work for Price as a deputy district attorney in Alameda County. He’s currently working for Price part-time and launched his campaign against Jenkins in January.
Khojasteh is hammering Jenkins for overseeing a rise in crime after promising that getting rid of Boudin would solve San Francisco’s problems. Jenkins has now turned her fire on judges, a strategy that has largely backfired so far. Efforts to oust two San Francisco judges failed in elections earlier this month.
“Now the mayor, the DA, the police chief, who are all aligned, don’t have anyone else to blame.”
“Now the mayor, the DA, the police chief, who are all aligned, don’t have anyone else to blame,” Khojasteh told The Intercept. “So they decided to shift that to judges, and that failed.”
Even the San Francisco Chamber of Commerce, which was critical of Boudin, has raised alarms about crime in San Francisco under Jenkins. The chamber’s annual City Beat poll, released in February, showed that 72 percent of residents feel San Francisco is on the “wrong track” and 69 percent feel that crime worsened in 2023, during Jenkins’s tenure.
Although Jenkins has now fallen victim to the panic she stoked, her rhetoric has eroded faith in the entire system and made it harder for prosecutors and judges to do their jobs, Khojasteh said. Some victims have refused to cooperate because they’ve heard that DAs won’t prosecute or that judges will release people.
“That’s rhetoric coming from Brooke Jenkins making my job harder,” he said. “I’m the one begging the victim to come to court just to do the basics of my job.”
While Price pointed to similarities between her predicament and the San Francisco recall, she noted that what’s happening in Alameda County is very different.
“It’s the same false narrative used: the ‘soft-on-crime’ trope that comes from the 1980s, from Ronald Reagan.”
“We know that some of the major donors for the Alameda County effort were involved in funding the recall of Chesa Boudin,” Price said. “So it’s the same false narrative used: the ‘soft-on-crime’ trope that comes from the 1980s, from Ronald Reagan. The difference is that Alameda County is not one city.”
Alameda is a diverse county made up of many residents who rent, including those who may not be as accepting of the status quo as voters in San Francisco.
The linking of race and crime has been deeply embedded in how the criminal justice system functions, how it’s perceived, and the conversation that has proceeded, Price said.
“It’s a conversation about race and criminality that led to mass incarceration,” she said. “And so it’s that same conversation that we have to be willing to engage in, if we’re going to unravel mass incarceration.”
The post “Crime Has Been a Euphemism for Race”: Alameda County’s Reform DA Rejects Recall Narrative appeared first on The Intercept.
How the Right Is Taking Over State Courts With Judicial Gerrymandering
Florida Gov. Ron DeSantis during a news conference on March 20, 2024, where he signed a state law addressing homelessness.
Photo: Joe Raedle/Getty Images
In the nearly two years since the Supreme Court sent abortion rights back to the states in Dobbs v. Jackson Women’s Health Organization, state courts have become a hotbed of battles to criminalize, legalize, or expand access to abortion care.
States like Michigan prevented decades-old draconian bans from taking effect, while Arizona, Florida, Wisconsin, and others have challenges pending in state court to their criminal bans. Judges in Florida, Missouri, and Ohio have also become referees for when voters get to weigh in on abortion rights through ballot measures.
Beyond abortion, the Supreme Court’s supermajority conservative bloc has made the entire federal judiciary generally hostile to civil rights. State courts have therefore increasingly assumed center stage on a wide variety of issues: LGBTQ+ rights and gender-affirming care, criminal justice reform and police accountability, voting rights, and more. As state courts and the cases they handle continue to grow in importance, so have various efforts to rig who sits on those courts and who has power in the legal system.
If in the past legislative gerrymandering — or redrawing legislative districts in artificial ways — was used to entrench corporate and partisan power, we now see another branch of government being manipulated to rig the system toward the same aims: judicial gerrymandering.
Like its legislative counterpart, judicial gerrymandering threatens our democracy.
Judicial gerrymandering is the process of manipulating the rules for selecting, retaining, or replacing judges, prosecutors, and other judicial actors to evade voter accountability. It can look like state legislatures redrawing judicial districts to favor certain voters; judges evading the prescribed retirement process to prevent elections for open seats; or state officials creating new “tools” to remove elected judges and prosecutors as an end run around voters’ choices.
Like its legislative counterpart, judicial gerrymandering threatens our democracy.
In states where gerrymandering has already created severely partisan legislatures, the rigging of judicial positions — which are typically voted on at the local level — threatens to cut entire swaths of the population out of the political process.
Take Georgia, where conservatives have devised a scheme to prevent voters in more progressive parts of the state from exercising their power to elect their judges. As judges approach reelection, several have strategically retired before they would have to face voters, and the state has canceled elections for their seats, sending power to Gov. Brian Kemp, a Republican, to appoint their replacements and depriving voters of the opportunity to select new jurists according to state law.
The Georgia state legislature has also created a partisan oversight commission with the power to suspend and remove locally elected prosecutors, part of a national campaign of attacking the independence of district attorneys. The commission has been given broad authority to disqualify prosecutors for 10 years based on their charging decisions — often decisions aimed at reducing mass incarceration by not prosecuting low-level offenses like drug charges, or standing up for reproductive rights by taking public stances against criminal bans.
In Mississippi, state officials have executed a judicial takeover of majority-Black Jackson, depriving its mayor, also Black, and its residents of local control over police, prosecutors, and the courts. One attempt to dilute voting power over elected county judges failed, but the state has created a two-tiered system in which a Capitol district controlled by white conservatives has power to govern Jackson instead of the city’s own residents.
And in Florida, state officials considered judicial redistricting to attempt to kick out reform prosecutors, who are elected based on the district “circuit” lines for state courts. The Florida Supreme Court demurred last year, but that doesn’t stop the legislature from taking it up in 2024. These redistricting efforts come in tandem with moves by Republican Gov. Ron DeSantis to suspend prosecutors in both Orlando and Tampa, due to his disagreement with their approaches to prosecution.
These efforts come in various shapes and sizes, but they all add up to an end run around the democratic process, depriving voters of an opportunity to elect officials based on their priorities, and depriving officials of the ability to do the jobs they were elected to do.
The trend will continue to intensify in the coming years. The Supreme Court has made it clear it won’t get involved in issues of state and local power consolidation, no matter how egregious.
Across states, legislators and governors often follow one another, proposing “new ideas” to consolidate power along partisan lines. These attempts start not as bald-faced power grabs, but something more insidious. Early, small pushes set the precedent for actions that are bolder and more problematic — and often harder to reverse. It is up to all of us to stay vigilant and pay close attention to this new brand of subtle attempts to dilute community power.
There is also, however, a growing resistance. There’s a new playbook taking shape: a movement by elected officials, community organizations, nonprofit lawyers, and civil rights groups who are executing a range of legal and electoral strategies to fight back against judicial gerrymandering. In Georgia, for instance, we have worked with a bipartisan coalition of prosecutors to file litigation challenging their oversight commission.
The same system that can be rigged for political advantage can also be used for good, to protect civil rights.
This pushback also includes efforts to let voters weigh in on changes regarding judicial authority and redistricting. When people understand what’s at stake and are given a voice, they can make it harder for state officials to interfere with and take over local power.
Supporting government officials who push back is critical to resist those trying to rig the rules of democracy. The same system that can be rigged for political advantage can also be used for good, to protect civil rights. The effort for reform has won victories too, in even purple and red states like Wisconsin, Georgia, and Mississippi. The future of our democracy may depend on more of these wins.
The post How the Right Is Taking Over State Courts With Judicial Gerrymandering appeared first on The Intercept.
Pro-Israel Advocates Are Weaponizing “Safety” on College Campuses
People gather to protest the banning of Students for Justice in Palestine and Jewish Voice for Peace chapters at Columbia University on Nov. 20, 2023, in New York City.
Photo: Michael M. Santiago/Getty Images
Two weeks ago, the Columbia chapter of Students for Justice in Palestine publicized an email leaked by an anonymous student at the university’s social work school. In the email, a professor, who was also not named in the screenshot, raised the issue of a Palestinian flag emoji that the student had placed next to her name during Zoom meetings.
“On an unrelated matter,” the professor wrote, “it has recently been brought to my attention that geopolitical emojis” — the Palestinian flag — “used at the end of name info has caused trauma reactions, making it difficult for some to remain present and not dissociate during class session.”
LEAKED EMAIL EXCHANGE:
Columbia University Professor asks CSSW student to remove Palestine Flag from their zoom name online because it has “caused trauma reactions”.
“Geopolitical emojis” is referring to the Palestinian flag. pic.twitter.com/SQVyB6E4rU— Columbia Students for Justice in Palestine (@ColumbiaSJP) March 14, 2024
The professor asked for the student’s “continued partnership in ensuring our class space remains a safe one for all.” In an excruciatingly polite response, the student asked for permission to discuss the issue collectively, with the class.
It’s the stuff of far-right parody: an absurd example of “woke” culture. An Ivy League professor, invoking the language of “trauma response” and safety, in an email that refers to class members as “folx,” suggesting the removal of an emoji.
Yet the professor’s email speaks to a broader problem of student safety being flattened into a question of whether students feel safe. And these aren’t the reactionary tropes of left-wing “snowflakes”: “Safety” is being invoked by pro-Israel students, many conservative and center-right, who believe that protests targeting the nation state constitute inherent attacks on them as Jews.
The same dynamic played out in the fall at the same university. Last November, Columbia banned its chapters of Students for Justice in Palestine and Jewish Voice for Peace, as The Intercept reported, because an “unauthorized event” put on by the groups “included threatening rhetoric and intimidation.” When challenged to name the threat, Columbia Senior Executive Vice President Gerald Rosberg said only, according to a lawsuit filed on behalf of the student groups, that “accusations that Israel was ‘a racist state committing genocide’ and ‘is an apartheid state’ could upset some people and ‘seem … like an incitement of violence.’”
New York City’s Upper West Side isn’t the only setting for such thin complaints. A staggeringly imbalanced feature in The Atlantic this week, written by Stanford sophomore Theo Baker, offered up a supposedly neutral narrative that treats the “conflict” on his college campus as a battle between imperiled Jewish students and unreasoned pro-Palestine zealots.
Right-wing GOP culture warriors and conservative Zionist groups are using similar claims about campus incidents nationwide. “Safety” is the latest weapon in the culture war, being deployed now to deal a blow to diversity, equity, and inclusion initiatives, known as DEI, and to silence criticism of Israel.
“People are taking their feelings of being uncomfortable with information as the same as physically being unsafe.”
The result has brought us to our intolerable status quo, with students and faculty risking grave consequences for protesting a war in which Israeli forces have slaughtered over 31,000 people. Israel’s U.S.-backed assault has razed to rubble every single university in Gaza, but the concern as relates to intellectual life in this country focuses instead on the inoculation of Israel’s young supporters from bad feeling.
“People are taking their feelings of being uncomfortable with information as the same as physically being unsafe,” said Layla, a Palestinian American graduate student at Columbia’s School of Social Work, who asked to withhold her last name for fear of harassment. “As a Palestinian student, I’ve lost family in Gaza. Frankly, I get uncomfortable when Zionist students are chanting ‘no ceasefire’ on campus. That makes me feel uncomfortable. That makes me feel unsafe. But I know that it is not a physical threat to my safety. That is free speech.”
Feeling Safe vs. Being Safe
The need to distinguish between feeling safe and being safe is both urgent and undeniably fraught. Antisemitism is rising. There have been instances, including on campuses, of Jewish students harassed and targeted solely for wearing a kippah or being otherwise identified as Jewish. Islamophobic, anti-Arab, and anti-Palestinian violence is surging. And a American-supported genocide is being carried out halfway around the world in the purported name of Jewish safety. Yet this is no time for cowardice.
Writing as a professor and a Jew, with a profound commitment to my students’ safety and well-being, I see an imperative for them to learn to distinguish between genuine threat and paranoia — that their judgments of the world be grounded and attentive to the workings of power, propaganda, and ideology.
Instead, a perfect political storm, driven in large part by sustained campaigning from pro-Israel groups, has produced structures of feeling — a map of collective emotions at historical junctures — that are resistant to challenge. The elements include the conflation of anti-Zionism with antisemitism, pushed evermore fervently by Zionist groups in the last decade; the equation of feeling unsafe with being unsafe that has been normalized in the oversimplified liberal discourse; and the weight of intergenerational Jewish trauma combined with very real antisemitism in the present.
I have no doubt that the students’ feelings of fear are real, but educational institutions should not be validating a psychic block that precludes seeing support for Palestine as anything other than a threat.
Israel’s War on Gaza
One way universities are validating these feelings as proof of real danger may be out of their hands: through Title VI complaints and, in some cases, official investigations. Title VI of the 1964 Civil Rights Act prohibits discrimination based on race, color, or national origin in programs or activities that receive federal financial assistance. By statute, universities are duty-bound to take these complaints seriously, but that doesn’t mean they’re always serious.
In the post-October 7 campus battles, the complaints in question consistently center on claims of campus antisemitism — referring to Title VI’s protection from discrimination based on national origin.
Related
Student Protests for Gaza Targeted by Pro-Israel Groups for Alleged Civil Rights Violations
The Department of Education’s Office for Civil Rights has 80 open Title VI investigations that have arisen since October 7 that fall under the category of “shared ancestry” discrimination, which also covers incidents of Islamophobia and other religious discrimination. And just one man, Zachary Marschall, the editor of the right-wing site Campus Reform, is responsible for 10 of them, according to a database of the complaints and investigations put together from public data by the Jewish Telegraphic Agency.
To file a complaint, a person need have no affiliation with the institution in question. Marschall, an outspoken critic of DEI, has no connection with any of the universities against which he is the Title VI complainant, but claims to be filing the complaints on behalf of campus figures who are often not publicly named.
While details of the federal investigations are not public, Campus Reform’s coverage of reported antisemitism on campus offers clues about Marschall’s approach. His posts on the site consist largely of alarmed responses to Palestinian solidarity slogans, calls for ceasefire, and vocal anti-Zionism on the part of left-wing Jewish student groups.
Consider, by way of example, Johns Hopkins University in Baltimore, against which Marschall filed a Title VI complaint. Campus Reform wrote about the school too. A November post cited as evidence of anti-Jewish animus the fact that a faculty open letter in support of a Gaza ceasefire was commended by the Council on American-Islamic Relations, a Muslim civil rights group that Campus Reform alleged is connected to Hamas — a common attack against CAIR that the group has denied as a “smear.”
Marschall may well think the discrimination he is alleging is very real, but it hangs on a thin reed. To have the desired impact, though, the Title VI complaints don’t necessarily need to be sustained. The Department of Education might rule that Marschall’s complaints fail to show civil rights violations, but the investigations themselves can still have a chilling effect, forcing universities to act out of fear of losing federal funding.
The investigations can and have drummed up publicity, putting other university funding in the crosshairs. The effects of similar pressure campaigns are already being felt: Elite universities have appeased wealthy pro-Israel donors, who have since October 7 threatened to withhold their money if anti-Israel speech is tolerated on campus.
Pro-Israel protesters argue with pro-Palestinian protesters during a demonstration near Columbia University on Feb. 2, 2024, in New York City.
Getty Images
Antisemitism as Cudgel
Using antisemitism for political ends is not a new tack. Efforts like Marschall’s play into a pattern of reporting on antisemitism that obfuscates rather than clarifies material antisemitic threats. Frightening statistics, leading to sensationalized headlines, about soaring campus antisemitism are compiled by conservative, agenda-driven watchdogs that conflate anti-Zionism with antisemitism as policy.
They assert without compunction that calls for Palestinian liberation are a threat to Jews. The statistics then take on the imprimatur of official narrative, stoke further fear, and resist dispute — any such challenge is open to charges of antisemitism denialism.
Meanwhile, three Palestinian students wearing Keffiyehs were shot last November in Vermont, leaving one paralyzed from the waist down. An Arab Muslim student at Stanford was hospitalized in a hit-and-run in November that authorities are investigating as a hate crime. (The latter incident went notably unmentioned in Baker’s viral Atlantic story detailing threats at Stanford.)
And there have been physical dangers at Columbia, too — for pro-Palestine students. Those attending an on-campus Palestine solidarity rally in January were sprayed with a noxious chemical by two veterans of the Israeli military, also Columbia students. Numerous students — including Layla, the Palestinian social work student — were hit with the foul-smelling spray, believed to be Israeli-developed chemical weapon known as “skunk.”
Fifteen students had to seek hospital care for nausea, burning eyes, and irritated skin. While the NYPD is investigating the incident and the assailants are currently banned from campus, the university’s initial response was to chide the injured students for holding the protest in the first place.
Palestinian and pro-Palestinian students at Columbia and elsewhere have seen their faces and names projected on “doxxing trucks” circling campus. A vocally pro-Zionist business school professor, Shai Davidai, has faced complaints that he used his X account to target individual Palestinian and pro-Palestinian students by linking them to Hamas. (Davidai has denied going after particular students, though in January he promoted a form letter that singled out a student by name and, in March, accused a student of being “pro-Hamas” while linking to a tweet that identified her.)
In response to dozens of student complaints, the university launched an investigation into Davidai’s behavior; he has decried the probe as “retaliation.” His outrage make sense, I suppose, in a universe that gives credence to a Palestinian flag emoji as a potential trigger for a “trauma response.”
“The Absence of Any Real Threat”
The disparity of the stakes — felt safety and its material counterpart — become ever starker when one’s gaze is turned to where it really belongs: Palestine itself. Students speaking out for Palestine are not doing so to shore up campus safety for Palestinian students — which the Palestinian students, of course, deserve — but because they are desperate to see an end to Israeli assault on Gaza.
“I question why our focus is on the elite college campuses and their use of language over the horrific injustices being committed against the Palestinian people,” wrote Maryam Iqbal, a freshman at Barnard College and among the students hospitalized after the Columbia chemical attack, in the college newspaper. “There is absolutely no reason to be centering the feelings of privileged college students over the victims of an actual genocide.”
Iqbal told me that she hoped that following the chemical attack, the university administration’s attitude towards what constitutes threat and safety, and where risks lie, would change. “Nothing has shifted,” she said.
Instead, attacks on expression continue. Last month, Barnard banned students from displaying any decorations on dorm room doors, to avoid “the unintended effect of isolating those who have different views and beliefs.”
There are, without question, students who feel hurt and unwelcome when faced with protests and speech condemning Israel as a genocidal apartheid state. Many Jewish people struggle to square such realities with the idealized notion of Israel we were raised with: that it is a noble and necessary state for Jewish safety.
I know, too, that there are Jewish students who fear that antisemitic groups and individuals are simply using opposition to Israel as a guise for anti-Jewish hate — there’s certainly historic precedent. And there are, as I noted, examples of genuine heightened antisemitism on campus. When Jewish people are targeted for being Jewish, we need to act with severity. Fear, however, does not make a protest against Israel, even a protest against its maintenance as a Jewish ethnostate, a protest against Jews.
“Treating feelings of fear and discomfort seriously does not mean reifying them.”
Institutions of higher education should be in the business of demystification, even when it involves challenging certain sensitive received wisdoms. We fail as educators if we permit the false lesson of all too many Zionist upbringings — that Palestinian freedom is a threat to Jewish safety — to persist for our students.
As Joseph Howley, a classics professor at Columbia who has been perturbed by the treatment of pro-Palestine protest on campus, told me, “Treating feelings of fear and discomfort seriously does not mean reifying them.”
Howley, who is also Jewish, noted that, by the same logic, we would not want to validate the fear felt by a white student, conditioned under racist assumptions, who called the police because they felt afraid in the presence of a Black student.
“Capitulation to this sort of language of fear and unsafety in the absence of any real threat,” he said, “is a real betrayal of our actual responsibilities as teachers to the social emotional development of our students.”
Students and activists protest Columbia University’s decision to suspend the student group chapters of Students for Justice in Palestine and Jewish Voice for Peace for holding pro-Palestine events on campus, in Manhattan, N.Y., on Nov. 15, 2023.
NY Daily News via Getty Images
More Than a Feeling
We might be tempted to hand it to the anti-woke right, who warned against the proliferation of “safe space” language and “therapy speak” as organizing forces at American universities. Such criticisms, though, rely on bad faith framings of anti-racist and diversity work — only the worst liberal iterations, although too common, exemplify the right-wing caricature of colleges privileging “snowflake” student feelings.
It is a different, more rigorous exercise entirely when students and professors proffer materially grounded, historically informed opposition to oppressive speech and discriminatory treatment on campus.
When the Hillel student group at the New School in New York City, where I teach, invited a lieutenant from the Israeli military to come speak on campus in early March, I was among several colleagues who signed a letter to our administration, requesting the planned event be canceled.
Among the reasons listed was that many students, above all Palestinians, would feel “utterly unsafe” to have an active-duty Israeli soldier on campus. This, I thought, was true, but a weak argument; the students might feel unsafe, but they would not be unsafe.
The letter’s far stronger claim was that, as a university founded on antiwar ideals and a purported commitment to liberatory principles, the school should not offer “a platform for an army that continues to violate international law and is actively engaged in perpetrating human rights abuses and the murder of Palestinians in both Gaza and the West Bank.” It is, I believe, valid to oppose a university hosting an active ranking officer of an army that has obliterated every single institution of higher education in Gaza.
Citing the importance of free speech, the university permitted the talk to proceed.
I’ve long argued against an absolutist approach to free speech on campuses and beyond; some oppressive speech, even if constitutionally protected, should not be platformed. Decisions about canceling speakers and banning certain speech, however, should not be a question of privileging certain peoples’ feelings and fears over others, however visceral the feelings might be.
Rather, we must — without presuming answers in advance — interrogate whether structures of oppression and violence are normalized and upheld in our educational institutions through these choices. The decisions will be imperfect and contested, but at least they will be based on more than feelings.
The post Pro-Israel Advocates Are Weaponizing “Safety” on College Campuses appeared first on The Intercept.
Anti-Abortion Doctors Struggle to Explain Mifepristone Harms Before Supreme Court
The theory at the core of the lawsuit filed by the Alliance for Hippocratic Medicine and a handful of anti-abortion doctors who are challenging the Food and Drug Administration’s approval of the abortion drug mifepristone is that they have been harmed — or will be harmed — by the FDA’s actions.
The doctors are not claiming that they’ve been hurt by taking the drug or prescribing it, which none of them do. Instead, their theory goes something like this: Mifepristone is dangerous, and pregnant people who take the drug are bound to have serious complications. When they do, they’ll probably go to an emergency room, which could be in a hospital where one of the anti-abortion doctors works. As a result, the doctor could be pulled from regular patient duties to deal with the mifepristone-related emergency, forcing them to play some role in the provision of abortion and causing emotional trauma.
The claim is so tenuous that during oral arguments in the case on Tuesday, not even the anti-abortion majority of the U.S. Supreme Court seemed to buy it as a theory that would give the group standing to sue the FDA. The justices appeared disinclined to rule in a way that would narrow access to medication abortion, at least for now.
“FDA approved mifepristone based on the agency’s scientific judgment that the drug is safe and effective,” U.S. Solicitor General Elizabeth Prelogar told the court. “It’s maintained that judgment across five presidential administrations, and millions of Americans have used mifepristone to safely end their pregnancies.” The alliance “may not agree with that choice,” she continued, “but that doesn’t give them … a legal basis to upend the regulatory scheme.”
Mifepristone is the first in a two-drug protocol approved for early pregnancy termination. It blocks progesterone, a hormone needed to continue pregnancy, while the second drug, misoprostol, causes the uterus to contract, expelling the pregnancy. Mifepristone is among the most studied drugs in the country; it has been used in more than 600 published clinical trials, and at less than 1 percent, the risk of serious complications is low. Today, the two-drug regimen accounts for more than 60 percent of all abortions in the United States.
The FDA first approved mifepristone in 2000. In 2016 and 2021, the agency loosened restrictions on the drug that had long been challenged as medically unnecessary, extending its use through 10 weeks of pregnancy and lifting a requirement that it be dispensed in person.
The Alliance for Hippocratic Medicine, an umbrella organization for several groups of anti-abortion doctors, filed federal suit in Amarillo, Texas, in late 2022, challenging the FDA’s initial approval of mifepristone as reckless and the subsequent changes as hazardous. Filing the suit in Amarillo — where the group had only recently incorporated itself — offered a tactical advantage: It guaranteed that the case would be heard by Judge Matthew Kacsmaryk, a far-right Trump-appointed judge who hears all federal civil cases filed in the Texas Panhandle.
Kacsmaryk did not disappoint. In April 2023, he sided with the alliance, ruling that the FDA never should have approved mifepristone in the first place. To support his position that mifepristone was wildly unsafe, Kacsmaryk disengaged from science and instead cited an analysis of anonymous blog posts, a researcher whose work has been repeatedly called into question, and two studies sponsored by an anti-abortion organization that have since been retracted by the journal that published them.
The government appealed to the 5th U.S. Circuit Court of Appeals, which disagreed with Kacsmaryk’s conclusion regarding the 2000 approval of mifepristone but nonetheless said the FDA impermissibly loosened restrictions in 2016 and 2021.
In coming to their conclusions, both courts bought the alliance’s shaky theory of legal standing. On Tuesday, the justices on the Supreme Court seemed less convinced — even if Justice Samuel Alito was inclined to try to help his colleagues along. What if an anti-abortion doctor was the only person on duty in an emergency room when a “woman comes in with complications from having taken mifepristone … and as a result, in order to save her life, the doctor has to abort a viable fetus?” he asked the solicitor general.
The doctors “haven’t identified any incident in more than 20 years … that resembles that kind of hypothetical situation.”
If the doctor was forced into action, that could be a violation of longstanding laws that protect providers’ conscience rights, Prelogar responded, but that “situation has never come to pass.” The alliance and its doctors “haven’t identified any incident in more than 20 years that mifepristone has been available on the market that resembles that kind of hypothetical situation.”
Experts have worried that allowing legal standing on such a thin premise would lower the bar and permit nearly anyone to sue the FDA or any other agency for nearly anything they disagree with. Doctors who don’t think vaccinations are safe could sue to have their approval yanked; cardiologists could challenge a new heart medicine on the grounds that “some patients would no longer require their services,” as the FDA pointed out in a legal brief. Pharmaceutical companies have voiced concern that accepting the alliance’s premise would upend the system, encourage judges to second-guess scientists, chill drug development, and harm patients.
Even if the court were to accept that conscience rights had been violated, the doctors’ suggested remedy — making mifepristone illegal for everyone — was excessive, Justice Ketanji Brown Jackson observed. “I’m worried that there is a significant mismatch … between the claimed injury and the remedy that’s being sought.” Exempting the doctors from participating in abortion-related care seemed the logical solution, she said. Instead, “they’re saying because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all.”
Erin Hawley, a lawyer with the far-right Alliance Defending Freedom, which represents the Alliance for Hippocratic Medicine, tried to push back, ignoring the fact that broad conscience objections can be raised with hospital administrators or other health care employers well before a particular situation arises. She argued that the doctors couldn’t afford to waste “precious moments scrubbing in, scrubbing out” of the ER to lodge an objection.
Justice Neil Gorsuch interrupted: There had been a “rash” of recent cases in which a lower court issued a nationwide ruling when the circumstances called for a more modest result. “This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on … an FDA rule or any other federal government action,” he said.
If the court rejects the alliance’s theory of legal standing, the case is dead without the justices having to address the group’s baseless arguments about the dangers of mifepristone, and the drug will remain available, as it is now, under the FDA’s current regulations. The court is expected to issue a ruling later this year, likely near the end of its session, which concludes in June.
That doesn’t mean that the attacks on medication abortion will stop or that the court will stand in their way. Both Alito and Justice Clarence Thomas seemed open to discussing a revival of the Comstock Act, an 1873 law that outlawed mailing anything considered “obscene, lewd, lascivious, indecent, filthy, or vile” — which included contraception — as well as “every article or thing” that could be used for abortion.
The zombie law has been dormant for decades, but many anti-abortion activists see it as a means of enacting a de facto national medication abortion ban without having to confront mifepristone’s safety record — even if the law’s broad language would trigger the possibility that instruments and drugs used for routine gynecological procedures could also be subject to its provisions.
During oral arguments, Alito asked whether the FDA should have considered the Comstock Act before lifting the in-person dispensing requirement, which led to widespread mail order sales. No, the solicitor general responded. If the restriction wasn’t medically necessary, then the FDA was required to lift it, not consider a statute that was outside its scientific purview.
Thomas asked Hawley, the alliance lawyer, for her take on Comstock. “The Comstock Act says that drugs should not be mailed,” she said. “We think the plain text of that, your honor, is pretty clear.”
The post Anti-Abortion Doctors Struggle to Explain Mifepristone Harms Before Supreme Court appeared first on The Intercept.