Daily Archives: June 3, 2022

Unenumerated rights.

Those are the rights that may not be explicitly laid out in the words of the Constitution, but are considered essential to American life anyway.

In 1997 then-Chief Justice William Rehnquist said:

We have repeatedly emphasized that fundamental rights are those that are deeply rooted in our nations traditions.

History and tradition. Thats what Justice Samuel Alitos points to in his draft opinion that could overturn abortion rights in this country.

What else might the justices think is not deeply rooted in the "history or tradition" of the United States?

Obviously, that has implications for other cases," Kenji Yoshino says. "Same sex marriage is not deeply rooted in this nation's history and tradition. Contraception. The rights of interracial marriage."

"If we're really taking a baseline that says the right to be recognized as an unenumerated right has to be deeply rooted in this nation's history and tradition, all of those rights are now imperiled," Yoshino adds.

Today, On Point: Understanding unenumerated rights.

Kenji Yoshino, professor of constitutional law at NYU School of Law. Director of the Center for Diversity, Inclusion and Belonging. (@kenji_yoshino)

Jack Beatty, On Point news analyst. (@JackBeattyNPR)

Kathryn Tucker, special counsel at Emerge Law Group. She argued the cause of the respondents in the 1997 Washington v. Glucksberg case.

Los Angeles Times: "Op-Ed: A retro reading of the Constitution imperils many rights beyond abortion" "As astute commentators have noted, the draft opinion in Dobbs vs. Jackson Womens Health Organization not only seeks to overrule Roe vs. Wade, but might also someday threaten other decisions like Obergefell vs. Hodges, which secured the right to same-sex marriage."

On unenumerated rights

Kenji Yoshino:It's the air we breathe. And if I can even go further than that, it's really the foundation on which the Constitution has been built because ... at the very founding of the Constitution ... the condition that certain individuals who ratified the Constitution called the anti-federalists, who are worried about overweening federal governmental power, reserved was to say, "We will only vote for this if you enact a Bill of Rights."

One of those Bill of Rights is the Ninth Amendment, and the Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." And so, what I love about that is that there's a textual reference in the Constitution to the idea that there are textually unenumerated right. So there's a little bit of a paradox.

On the process by which unenumerated rights are retained by the Court

Yoshino:There are two tests for how to decide what is an unenumerated right. ... The test that conservatives have loved and that Justice [Samuel] Alito is trying to resurrect is a 1997 test that comes from the case, Washington v. Glucksberg. And in Glucksberg, the Court said, when you're trying to ascertain whether something is an unenumerated right, history is going to be your guide. And so the formal test is to question whether or not the right that people are proposing is, "deeply rooted in this nation's history and traditions and implicit and the concept of order liberty." So if you think about that, that is going to be a very backwards looking test.

And the alternative test, which was proposed by Justice [John Marshall] Harlan initially in his dissent in a case called Poe v. Ullman, which actually predated Washington v. Glucksberg, but was a dissent, but was later embraced by the Casey majority in 1992 is this test that says there can't really be any formula. We, of course, look to history as our guide, but we look not only at the traditions that we have as a country, but also the traditions from which we broke. And Harlan says that tradition is a living thing.

On the connection between "history and tradition" and the politics of the moment

Yoshino:I agree that thinking of Dobbs as adopting a very cramped reading of Glucksberg is a really good characterization. ... This is actually Justice Alito's version of history and obviously the people who signed on to that opinion and his version of history is very narrow indeed. So what he's saying is the test here is whether or not the unenumerated right is deeply rooted in this nation's history and traditions. And then he says, abortion is clearly not that. And so QED, abortion is not a fundamental right.

But as Jack was saying earlier, the right to abortion has been around since 1973. As you said earlier, abortions themselves have been conducted since time immemorial. And so he's selecting a very particular version of when history begins and what constitutes that history in order to come to the result that he comes to.

On the 1965 Griswold v. Connecticut case's precedent on discerning unenumerated rights

Yoshino: [The Griswold case]says the penumbras around the First, Third, Fourth and Fifth Amendment create a right to privacy. So what they're getting at a penumbra is just a shadow, right? is that these textual provisions cast these shadows. And those shadows, which all contain this notion of privacy overlap with each other such that they coalesce into a right in its own right, so that the right to privacy under which the right to contraception is protected is derived from the shadows of actual textual provisions. So text is being used as a counterweight to the lack of history right on point here.

On potential concerns about the future of unenumerated rights

Yoshino: I'm extremely concerned about them. I think time will tell, and only time will tell. But we have a test being articulated by the draft of the opinion that, if applied rigorously, would mean the demise of many of the unenumerated rights that we have come to take for granted. So I'm extremely concerned. I'm about to head into teach my new constitutional law class, and I feel like I'm teaching that generation that's going to have to fix this because I'm not relying on my generation to be able to do it.

View original post here:
The fragility of unenumerated rights | On Point - WBUR News

Soon after a Supreme Court draft ruling that would overturn Roe v. Wade was leaked last month, Amanda Shires shared some personal news on social media. Recently, I had an ectopic pregnancy, she tweeted. On August 9, 2021 my fallopian tube ruptured. On August 10, my life was savedthese are some dark days.

Shires, an incisive songwriter and solo artist and occasional member of husband Jason Isbells 400 Unit band, has been vocal about protecting a womans right to choose in the past. In 2020, she penned an op-ed for Rolling Stone about why abortion rights matter. In a new interview, Shires who returns with her latest album Take It Like a Man in July goes deeper into her own experiences and calls on artists, especially those in Nashville, to start using the platforms theyve been given.

When I wrote my first piece for Rolling Stone, Id had an abortion before. Since writing that op-ed, I have had reproductive healthcare that some might call an abortion when I was hospitalized in Texas on August 9, 2021, with a ruptured fallopian tube caused by an ectopic pregnancy. For those who are unfamiliar, it is impossible for an ectopic pregnancy to go to term. I would have died; my daughter, Mercy, would have lost her mother; my husband, Jason, would be a widower.

I was lucky. This happened to me two and a half weeks before Texas abortion ban went into effect. And I was still dealing with all of it two and a half weeks later. I mean, only just now nine months later, interestingly enough have I returned to having normal periods. This fight is about more than just abortion. I think thats what people keep forgetting.

The majority of people are in favor of womens reproductive rights and health; its others were trying to get to. But I think folks forget that access to abortion and reproductive healthcare is not just about terminating unwanted pregnancy. People forget that, if you take away access to reproductive healthcare, youre going to be killing moms like me. I would have died had this procedure not been available to me. Where would that leave my own daughter?

Weve had legal abortions for 50 years and now, suddenly, a long-held right will be illegal. How are we going to police that? People will have to prove that they have been raped. And any policing will disproportionately affect people of color, low-income folks and other marginalized groups. Its yet another thing that, when policing does happen, is going to happen haphazardly and ruin lives. Where does that get us with our Fourth and Fifth Amendment rights?

When Roe is overturned, some healthcare workers may feel afraid to help people. A person having a miscarriage may have to fly to another state, just so they or their doctor doesnt get into legal trouble. People are still going to get abortions, and were going to have to keep peoples secrets, and house people, and try to do the best we can. When we overturn Roe, we risk going back to, Oh, now same-sex marriages cant happen. Interracial marriages cant happen. Privacy rights are going to be gone.

Demographer Diana Greene Foster conducted a 10-year study tracking both people who had abortions and people who were denied abortions. Her study essentially proves that when folks cant have an abortion, it affects their mental health, their economic standing, their overall well-being. Ninety-five percent of study participants who did have an abortion still stood by their decision. Its just like you would expect, but theres real, scientific proof for it now. In the past, white men have said otherwise.

Since publishing my op-ed, Ive heard from some folks who are in their eighties. And that, to me, was incredible, because they had abortions in what was a pre-Roe v. Wade environment and theyre only now sharing their stories for the first time. Im glad to be a listener and also glad to see folks from those generations supporting the right to choose. It made me think, You know, I bet our grandmothers are more pro-choice than everybody leads us to believe.

As it turns out, it did start some conversations within our own families. We found out that, yes, our grandmothers are pro-choice. They might not have had a voice before or might have been cast out into the streets without any place to sleep had they mentioned it earlier in their lives. But finding a voice now and sharing their stories now is as good as any time. Hearing these stories, I think that it makes your backbone stronger. It makes it feel like youre tough enough for the fight, all the way down to your bones.

I also received responses from trolls. I had people threatening me. But whatever. Its not more threatening than the idea of taking away the services and the work that doctors and nurses do. I dont care if somebody wants to put a target on me. I wouldnt go back and change it. If we tell our stories, it helps other people feel empowered. It de-stigmatizes the conversation. If you share your story or share your beliefs, youre going to get some haters and trolls. But if you dont, youre going to be wondering, What didnt I do? What didnt I say that could have helped change one mind? I cant live with the idea of not speaking up.

We have to work hard now to mobilize and help people vote. The election is November 8. You dont see a lot of men speaking up, and every voice is helpful. Which brings up the question, why were Jason and I, and Margo Price, the biggest celebrities quasi-celebrities at the march in Nashville? Why didnt more people show up and speak up? I know everyone is scared of losing their rung on the ladder, but there are more important things, I think, than your fame. Not saying something is not helping. Not standing up for folks is not helping and its not right. I would like to think that fans can hold their role models and their favorite musicians accountable. Dont support artists who dont support your rights.

I would like to challenge other folks who have platforms to actually use them. Where the fuck are the rest of them? We have Olivia Rodrigo and Phoebe Bridgers speaking up, and Ariana Grande. Where are our Nashville folks? They arent helping. Are they just going to sit around and drink beer? I want Garth Brooks out there telling people that womens health is a priority. Thats what I want. Why not? What does he have to lose?

My best hope is that people continue to get angrier and that the folks who have been fighting so hard for so long, and are already tired, find some strength to keep fighting and also to mobilize others, especially youth, along the way. I hope that if Roe v. Wade is overturned, it causes such a fucking uproar that we end up with more rights than we had before.

See original here:
Amanda Shires Demands More Artists Stand Up for Abortion Rights: I Cant Live With the Idea of Not Speaking Up - Rolling Stone

Under subpoena from city elections officials, a former GOP ward leader refused to testify this week about his role in diverting mail ballots requested by dozens of Republican voters in South Philadelphia to a P.O. box he controlled.

Billy Lanzilotti invoked his Fifth Amendment right against self-incrimination through a letter sent by his lawyer Thursday, the same day he had been summoned to appear at a hearing of the Philadelphia City Commissioners.

His refusal to attend along with testimony at the hearing from voters he and others helped to apply for ballots escalates concerns that the effort may have violated the law. Lanzilottis actions had already led to his ouster from his ward leader position and raised concerns about the integrity of the ballots.

Leonard Armstrong, 71, told the commissioners Lanzilotti helped him fill out his ballot application, delivered his ballot, and then dropped it in the mail for him after hed filled it out.

It already had postage, so I didnt see any big deal about it. I didnt know what I was getting involved in, he said during a hearing at the Guerin Recreation Center, in the same South Philadelphia neighborhood where Lanzilotti based his ballot effort.

State law requires voters to return their own ballots unless they have a disability. Third-party ballot delivery what Republicans call ballot harvesting is forbidden. Armstrong said he didnt know that.

It was the first [time I voted by mail], he said. And it will be the last, I can tell you that. Even on my deathbed, it will be my last.

Questioned by the commissioners, Armstrong said he knew he was requesting a mail ballot, but not that it was going to a P.O. box.

Neither did the two other voters who testified Thursday after being subpoenaed. They said they never received the ballots they had applied for the ones sent to Lanzilottis P.O. box, which is also the mailing address for a Republican political action committee he had registered a few months earlier. Both voters used new ballots after elections officials, concerned about what Lanzilotti was up to, reached out to them, voided their original ballots, and sent replacements to their homes.

The voters said those ballots were legitimate and should be counted. City elections officials agreed and voted Friday to accept them, as well as those of three other voters Lanzilotti or others working with him had helped.

I do not believe the voters did anything wrong that would warrant their ballots not being counted, Chris OHara, an investigator for the commissioners, said Thursday. He had interviewed several of the voters and helped them obtain replacement ballots.

Though he refused to testify, Lanzilotti maintained in earlier interviews with The Inquirer that he had done nothing wrong.

He has since referred all questions to his attorney, A. Charles Peruto Jr., who said Friday that his client had made a simple mistake. Lanzilotti stopped his ballot delivery efforts after a May 6 story in The Inquirer raised questions about his effort, Peruto said. That could explain why some voters didnt receive their original ballots, he said, Lanzilotti had them and never delivered them.

He just froze up and did nothing. He stopped, Peruto said. We intend to answer the charges, if any are brought. There was no criminal intent.

The District Attorneys Office has said it is aware of the matter but spokesperson Jane Roh has declined to say whether it is investigating. A representative from the office attended Thursdays hearing.

Lanzilotti has maintained that he had only been offering a service to the voters when he and a few others associated with his political action committee, the Republican Registration Coalition, began knocking on doors in South Philadelphia, offering to help Republicans sign up to vote by mail.

He acknowledged filling out the address portion of the voters ballot applications, inserting his P.O. box instead of the voters home addresses. He said he had their ballots sent to him so they could be hand-delivered by someone they trusted.

It is not illegal for voters to request to have their mail ballots sent to an address other than their own. However, state law requires them to fill out and deliver their applications and ballots themselves, with an exception for disabled voters, who must explicitly acknowledge they had help from a third party in filling out their forms or mailing their ballots.

No such signatures appeared on any of the 39 mail ballot applications submitted by Lanzilotti or those working with him. And in several cases, the addresses were written in the same handwriting across multiple forms while the rest of the forms appeared individually filled out.

Several of the voters whose applications were requested through Lanzilotti told The Inquirer they had no idea who the men were when they showed up at their doors, though they accepted the help applying for mail ballots.

I dont even know who he was, Jackie OKeefe, one of the affected voters who testified at Thursdays hearing, said of the man who assisted her in filling out her application. He told me his name, but I have no clue who he was.

Lanzilotti has faced professional repercussions from his party which has run candidates who have attacked mail voting and falsely portrayed it as rife with abuse since The Inquirer first reported on his ballot effort.

His fellow Republican ward leaders ousted him from his post leading the 39th Ward in South Philadelphia, and he was barred from holding any party office in the city in the future. He also lost a job working on the reelection campaign of U.S. Rep. Brian Fitzpatrick (R., Bucks).

Lanzilotti had been running for ward leader in the 26th Ward, where his mail ballot effort was focused.

Two other men working with Lanzilotti Shamus ODonnell, 27, and C.J. Parker, 24, were also fired from roles with the state Republican Party.

See the original post:
Philly officials subpoenaed the man behind a potential GOP ballot harvesting effort. He refused to testify. - The Philadelphia Inquirer