On the Hill Updates: February 28, 2020
Reproductive Health, Rights, and Justice
Senate fails to advance anti-abortion bills
On February 25, the Senate voted on a pair of unconstitutional and unnecessary anti-abortion bills in what Minority Leader Chuck Schumer (D-NY) referred to as “shameless political stunts.” The Senate has previously rejected both measures and did so again this week as S 3275, the federal 20-week abortion ban, and S 311, the so-called “Born-Alive Abortion Survivors Protection Act,” failed to reach the 60 vote cloture threshold. The entire Republican caucus — excluding Sens. Susan Collins and Lisa Murkowski (R-AK) — were joined by Democratic Sens. Bob Casey (D-PA) and Joe Manchin (D-WV) in support of S 3275 (53-44) while all four senators and Sen. Doug Jones (D-AL) voted in favor of S 311 (56-41). Notably, while anti-abortion advocates claim that “Born Alive” legislation like S 311 outlaws infanticide, this crime is obviously already illegal in the US and these policies are actually carefully crafted to target, intimidate, and shut down reproductive health care providers by threatening them with criminal penalties and attempting to regulate the practice of medicine. NCJW strongly opposes S 311 S 3275, and all policies that restrict access to safe and legal abortion, shutter licensed clinics, and prevent patients from receiving care.
Senate Judiciary Committee to vote on 2 potential judges with troubling records
The Senate Judiciary Committee will soon vote on two of President Trump’s federal judicial nominees with records reflecting anti-women’s rights and anti-voting rights views, among other biases. If the nominees are voted favorably out of the Senate Judiciary Committee, the full Senate will hold a confirmation vote. On March 5, the Committee is expected to vote on Stephen Schwartz, who is nominated to the US Court of Federal Claims (this is a fifteen year appointment that often leads to a lifetime judgeship). Schwartz has spent his career attacking critical legal protections for women, immigrants, transgender youth, people of color, and the environment, including defending North Carolina’s “bathroom bill” and Louisiana’s abortion bans. On March 12, the Committee is expected to vote on Cory Wilson, who is nominated to a lifetime seat on the US District Court for the Southern District of Mississippi. Wilson frequently demonstrates his lack of judicial temperament on Twitter and, as a state legislator, voted in favor of extreme abortion restrictions. He has also called the Affordable Care Act “perverse” and “illegitimate.” NCJW strongly opposes the nominations of Schwartz and Wilson.
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SCOTUS denies justice for parents of son killed by border patrol agent
On February 25, the US Supreme Court issued a decision in Hernandez v. Mesa, one of the cases that NCJW is watching this term. At issue in the case was whether a border patrol agent who shot and killed a 15-year-old Mexican national across the US-Mexico border could be held personally liable. Lower courts held that the parents of the child who was killed, who are also Mexican nationals, lacked standing to sue because US federal laws do not protect foreign nationals. Justice Alito authored the majority opinion, which affirmed the Fifth Circuit decision and held that the matter is one of national security that must be left to Congress; Justice Ginsburg wrote a dissenting opinion joined by the other three liberal members of the Court that would have allowed the case to proceed. NCJW is deeply disappointed by this decision and believes that federal courts must serve as a check on the limitations of government power and provide a remedy when a state actor violates the Constitution.
SCOTUS to hear LGBTQ rights case next term
On February 24, the Supreme Court announced that it will hear Fulton v. City of Philadelphia, likely during the 2020-2021 term. After a 2018 article detailed Catholic Social Services’ policy against placing children with same-sex couples, the city of Philadelphia’s foster care system stopped working with the agency. The agency and several foster care parents then sued the city, alleging violations of their First Amendment rights to religious freedom and free speech, claims that were rejected by the US Court of Appeals for the Third Circuit. Now, the Justices will decide whether the city can exclude agencies that reject LGBTQ couples from its foster care system by requiring compliance with its nondiscrimination requirements. NCJW will be watching this case closely and will continue our work to eliminate all forms of discrimination.
Legal battles over Title X domestic gag rule continue
On February 24, an eleven-judge panel of the US Courts of Appeals for the Ninth Circuit vacated preliminary injunctions issued by three federal courts against the Title X domestic gag rule. Title X is the only federal grant program dedicated solely to providing individuals with comprehensive family planning and related health services and is legally designed to prioritize the needs of low-income families or uninsured people who might not otherwise have access to this care. Under the new rule, clinics funded through Title X can no longer refer a patient for abortion and will be forced to maintain “clear physical and financial separation” between services funded by the government and any organization that provides or refers patients for abortions. What’s more, providers are prohibited from discussing the full range of pregnancy options and are required to refer all pregnant patients for prenatal care. Oral arguments on the merits of the case — in which the court will decide if the regulation is contrary to law, arbitrary, and capricious — took place on February 27. NCJW strongly opposes the dismantling of Title X, which threatens the health of 4 million low-income people, people of color, young people, immigrants, and LGBTQ individuals who largely rely on the program.
Equal pay victory in the 9th Circuit
On February 27, an eleven-judge panel of the US Courts of Appeals for the Ninth Circuit ruled in favor of Aileen Rizo in her equal pay case against the Fresno County Office of Education. Rizo sued for pay discrimination after finding out that she was being paid less than male colleagues, despite having more experience and education, because of her employer’s policy to base a new employee’s salary on their prior wages. The use of prior wages helps perpetuate wage discrimination women and people of color face in the workplace. The Ninth Circuit held that a prior rate of pay — either by itself or in combination with other factors — is not a “factor other than sex” that allows for pay disparity and that only job-related factors may be used as a justification under the Equal Pay Act. NCJW had previously joined an amicus curiae (friend of the court) brief submitted in the case that made this argument. The Ninth Circuit had previously ruled this way on April 9, 2018; that decision was vacated by the Supreme Court on February 25, 2019, because the judge who originally authored the Ninth Circuit’s decision in Rizo’s case passed away before it was issued. NCJW supports this decision, which ensures fair pay for all workers.
Sanctuary cities circuit split
This week, the Second Circuit Court of Appeals ruled that the Trump administration could withhold millions of dollars in grants to law enforcement agencies in sanctuary jurisdictions, i.e. places where local law enforcement does not actively partner with federal immigration enforcement. Three other appeals courts have ruled differently, finding that the administration could not tie grant money to cooperation. The case will either be reviewed by the full Second Circuit (known as an ‘en banc’ review), or be appealed to the US Supreme Court, which typically resolves conflicting rulings among federal appeals courts. NCJW joined an amicus brief for a similar case in the Ninth Circuit opposing the administration.
Immigration and Refugees
Appropriations process kicks off
Earlier this month, the president released his budget proposal for fiscal year 2021 (FY21). Hearings in which administration officials make the case for their budgets before congressional authorizing and appropriations committees began this week. Acting Department of Homeland Security (DHS) Secretary Chad Wolf testified before Congress about the administration reprogramming additional money from the Pentagon to immigration enforcement, while Members of Congress grilled Defense Secretary Mark Esper about the impact of reprogramming on the Pentagon. NCJW is a member of the #DefundHate coalition, which advocates for cuts in funding to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), the DHS agencies behind immigrant detention and deportation.