The Supreme Court’s Draft Abortion Decision: It’s Even Worse Than You Think, But Voting is Our Check and Balance

This post is authored by Professor Kari Hong. Kari Hong has been a scholar, law professor, and practicing attorney for the past twenty years.  Her expertise is in equality and due process for immigrants, those convicted of crimes, and marginalized groups, including the LGBTQ+ community.  Her scholarship has been cited hundreds of times.  Her legal commentary has appeared in the Boston Globe, Washington Post, New York Times, and CNN.  Her federal court work has resulted in dozens of published cases in the Ninth Circuit.  This essay was given as a speech at the May 8, 2022 Bans Off Our Bodies rally in Missoula, MT.

On May 3, 2022, someone leaked a draft of the Supreme Court’s decision in Dobbs v. State of Mississippi, which overturns Roe v. Wade.[1]  I’m going to answer three questions: One, How could this happen?  Two, What is next?  And Three: What are we going to do about it?  I’ll give away the ending—a lot.  We are going to do a lot.

First Question: How Did This Happen?

Starting with the first question, how on earth could a Supreme Court in 2022 overturn Roe v. Wade, precedent that is often described as “super precedent.”[2] To answer that question, we need start with what life in America was like before Roe v. Wade existed.[3]

Life Before Roe v. Wade

Up until the 1960s, states had the right to ban and criminalize all sex that was outside of marriage and all sex that did not lead to procreation. 

  • If you were married and had an affair, that was the crime of adultery.[4]
  • If you just had sex without being married, that was the crime of fornication.[5]
  • If you lived with someone from a different race, that was assumed to involve sex, so that was the crime of cohabitation.[6]
  • If you married someone from a different race, that was the crime of miscegenation.  And a felony.  That was state law, until 1967, when the Supreme Court decided Loving v. Virginia.[7]
  • If you had sex with someone of the same gender, that was the crime of sodomy.  And a felony.  That was state law, until 2003, when the Supreme Court decided Lawrence v. Texas.[8]

Because this criminal scheme was not enough to deter a woman from having sex outside of marriage, some states did even more.  In some states, children born to an unmarried women had the word “bastard” on their birth certificate where the name of the father was supposed to be.[9] In many states, a “bastard” could not inherit property or money.[10]  A “bastard” could not bequeath money or property to their own child. [11] And a “bastard” was barred from running for public office and testifying in court.[12] States could deny burials to “bastards.”[13] If murdered, they were killers faced lighter sentences than if they had killed someone born in wedlock. These were state laws until 1968, when the Supreme Court decided Levy v. Louisiana.[14] 

And married women were not off the hook.  If a married couple asked for information about contraception, the doctor who answered their questions would be committing a felony.  That was the law until 1965, when the Supreme Court decided the Griswold v. Connecticut.[15]

And if a doctor who gave contraception to an unmarried person was guilty of a felony.  That was state law, until 1972, when the Supreme Court decided the Baird v. Eisenstadt case.[16]

Then in 1973, the Supreme Court decided Roe v. Wade, which struck down a state law that had punished a doctor who performed an abortion with a two to five year prison term.[17]

The Constitutional Foundation for Our Modern World

What was the reason?  The Supreme Court began to recognize that there was something more fundamental in how we lived.

The justices back then were not Originalists.  They were not Textualists.[18] 

The justices looked at the Fourteenth Amendment—one of three amendments that passed after a Civil War was needed to declare Black people, full persons.[19]

As law professor Peggy Cooper Davis noted, the Fourteenth Amendment was drafted to break from a history that had literally denied  personhood to too many.[20]

Under the Fourteenth Amendment, our very personhood was no longer limited by history and tradition.  It was not limited by words.  It was not limited by the Founders’ own blind-spots.

Rather, the Fourteenth amendment created equality and personal liberty. This often is called a right to privacy.  But it is so much more.

The Fourteenth Amendment created our family values[21]

There is no doubt that for the past 100 years, in the United States, there is a recognition that we all have a right to choose to our family.  This is not a narrow right to have an abortion.

The right to have children—or not.

This is the right to marry—or not.

This is right to our life. 

This is a right to shape our own destiny.

In the 1950s and 1960s, the Supreme Court, under Chief Justice Warren, was very active in recognizing foundational civil rights and these family formation rights.[22]

The critics accused them of judicial activism.  But the Supreme Court interpreted the constitution to reflect our values, not limit them.  And this wasn’t activism.  The majority of Americans prefer this modern world.[23]

The Successful Fifty-Year Campaign to Change The Supreme Court

But a minority of Americans did not like it, and to their credit, undertook a dedicated fifty-year campaign to change the institution that started it all—the Supreme Court. 

In the past eighty years, most of the justices appointed to the Supreme Court were appointed by Republican Presidents.  But the men—and they were all men—who were picked were thoughtful men whose views changed over time. 

Justice William Brennan—”the lion of liberalism”—started out a Republican, appointed by President Eisenhower.[24]  

Justice Harry Blackmun, who ended up championing gay rights and calling for the end of the death penalty, was appointed by President Nixon.[25] 

Justice Souter, who eloquently defended the separation of church and state and wrote the 1992 Planned Parenthood v. Casey decision[26] that affirmed Roe v. Wade, was appointed by George H.W. Bush.[27]

Some Republican politicians were mad about this.[28]  They felt entitled to have a justice be faithful to the small politics of the president instead of being a thinker, and evolving as the law and facts so demanded.  So, they made changes.

What type of lawyer then will be the best judge to follow party politics above a fidelity to the institution?  It could not be a lawyer who has worked with real people as clients, who knew the heartbreak of loss and understood how critical the Court’s legitimacy was forged in creating a fair fight.  The ideal lawyer who could serve a political agenda was one whose job was to do just that.  This is why, we got Clarence Thomas, whose prior legal work was for the Reagan administration and Republican senators.[29]  We got Samuel Alito, who worked for the Reagan administration.[30]  We got Neil Gorsuch, who had worked for the Bush administration.[31]  We got Brent Kavanaugh, who worked for the Bush administration[32]. We got Amy Coney Barrett, openly and publicly called for overturning Roe v. Wade[33] and whose legal writings as a law professor argued religious views (actually, her religious views) should triumph over legal ones.[34]

See a pattern?

John Roberts also had worked for the Reagan, Bush I, and Bush II administrations.[35]  And in 1992, he had joined Justice Antonin Scalia’s concurrence in Planned Parenthood v. Casey, arguing to overturn Roe.[36]  But as Chief Justice, he evolved.  He understands that the Court’s legitimacy is a precarious one.  It will be lost if it is just another arm of the Republican party.

That is why, at critical times, Chief Justice Roberts breaks from his personal views to follow a nobler value.[37]

But we have a problem.  The other former government attorneys did not leave their politics when they put on black robes.

And now, on abortion rights and on too many other issues, we know the votes before we even have a case.

And, this is not me being cynical.  In September 2021, Mike Pence went to Hungary.  He gave a speech praising Donald Trump for picking three justices who would overturn Roe v. Wade.[38] 

The Unusual Path in The Court Hand-Picking A Case to Create A Challenge to Roe v. Wade

The states controlled by Republican legislators knew this too.  Starting with the addition of Justice Kavanaugh Republican states passed laws—in clear violation of Roe v. Wade—to regulate abortion before the twenty-four week period that Roe said could not be policed.

In March 2018, Mississippi passed a law prohibiting all abortions after fifteen weeks.  In May 2019, the federal district court struck it down, citing to Roe v. Wade, and starting the decision with “Here we go again. Mississippi has passed another law banning abortions prior to viability.”[39]

In December 2019, on appeal, the Fifth Circuit also struck down this law, explaining “In an unbroken line dating back to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability.”[40]

In March 2020, as it has the right to do, Mississippi appealed this case to the Supreme Court, which is known as Dobbs v. Jackson Women’s Health Organization.[41]  In its June 2020 petition for writ of certiorari, it argued, “To be clear, the questions presented in this petition do not require the Court to overturn Roe and Casey.”[42]

But on September 18, 2020, Ruth Bader Ginsburg died.[43]  On October 26, 2020, Donald Trump appointed Amy Coney Barrett to the Supreme Court.[44]

On May 17, 2021, the Supreme Court accepted the case for consideration.[45]

It did not have to do this.  The Court only selects 75 to 85 of the 10,000 cases presented to it each year.[46]  There was no conflict, and no unsettled law in the case. 

But on July 22, 2021, recognizing the opening it had been given, Mississippi filed a new brief, saying that the only issue for the Court to address is whether “it will overrule” Roe and Casey.[47]

For those who are not lawyers.  That is highly unusual for parties to change positions like that in briefing while the case is winding its way through the courts. 

But nothing about this case is usual.

We have a situation where the Republican party hand-picked five justices to overturn Roe v. Wade.  These five justices then hand-picked a case to overturn Roe v. Wade.  And the state of Mississippi even changed its legal argument from the time when Justice Ginsburg was alive to when Justice Coney Barrett replaced her.

As Justice Sonia Sotomayor asked in oral argument, “will the Supreme Court survive the stench” if the reason to overturn Roe v. Wade—is not a change in society, but a change in who is on the Court.[48]

So, that’s how we got here. It was a well-planned campaign that started in the 1980s.  And we know what the most likely result will now be.

Second Question: What Happens Next?

In the draft opinion, Justice Alito “overrules” Roe v. Wade and Casey because he says, the word “abortion” is not in the constitution and there is no basis to protect, what he calls, this misguided right that defines a person’s “concept of existence” in this world.[49]

In doing this, we are no longer looking to how the Fourteenth Amendment changed our definition of equality and liberty so that we look to the future.  Instead, we have a Court looking to limit rights through history and tradition. 

Looking to the past, is going to repeat it.

What’s going to happen when this decision comes out? 

On abortion, twenty-six states will ban abortion immediately.[50] 

Montana cannot—but only because our state constitution is a living constitution that protects a right to privacy.[51] 

But—pay attention—Republican leaders in Montana are calling for a constitutional convention to take that out.[52]  The Republican party is two votes shy in the Montana legislature to make that happen.[53]

On the state level, states will return to criminalizing abortion.  And this time, they are not just going after doctors.  They are going after the women.

Louisiana[54] already has drafted bills that criminalizes abortions, including ectopic pregnancies, and punish them as the crime of murder.  This is more extreme than the pre-Roe v. Wade days.

When a woman miscarries, there will be a police investigation to determine if she committed murder.  Women will have to prove in court that their miscarriage was accidental and not intentional.

I’m not exaggerating.  In April 9, 2022, the police in Texas arrested a 26-year-old woman who sought medical care after a miscarriage and charged her with murder.[55]  The district attorney dismissed the charges in couple of days.  But not for long.

On the federal level, Senator Joni Ernst, a Republican from Iowa, is among a group of Senators ready to introduce a bill that would ban all abortions that occur after six weeks.[56]

Already, Senator Mitch McConnell has said that in 2025, if the Republicans win the house, win the Senate, and win the presidency, they will pass a federal law to outlaw all abortions by statute.[57]  And we know his principled claim for the Democrats not to end the Filibuster will magically be made into a new “Merrick Garland rule” when it serves his ends.[58]

But What Else Is Gone?  Contraception, Same-Sex Marriage, Interracial Marriage, Right to Educate Children Is Next 

Just as you cannot take out the third story of a building and leave the rest intact, if Roe v. Wade is overturned, there also is no federal right to protect all decisions about when and how to form a family.  Re-read that sentence.  It is important.  When Roe v. Wade is overturned, there will no longer be a federal constitutional right to protect when, how, and if to form a family.

Some states will ban and even criminalize contraception.  In this past week, Republican leaders in Idaho[59] and Louisiana[60] promised to criminalize IUDs and other forms of contraception.

In the 2014 Hobby Lobby case, the employer opposed providing health care to their employees who wanted contraception.  The employers argued contraception aborts a fetus.  The Supreme Court agreed.[61]  This Court will let contraception be criminalized again.

The 2015 Obergefell case is based on the right to form your own family.  The 2003 Lawrence v. Texas case ended states’ ability to arrest and prosecute LGBT people for being who they are. in. The Texas Right to Life, and a former Attorney General in Texas, have called for both Obergefell and Lawrence v. Texas to be overturned.  In September 2021, their words explained, “These ‘rights,’ like the right to abortion from Roe, are judicial concoctions. . . and there is no other source of law that can be invoked to salvage their existence.”[62]

In 2017, Arkansas passed a law saying it will not list both lesbian parents as the parent to their child.  The Supreme Court struck it down, citing to Obergefell.[63] 

But Justices Thomas, Alito, and Gorsuch dissented, arguing that the state has the right to define families by biology and that Obergefell went too far.[64]

We now have Justice Kavanaugh and Justice Barrett to protect same-sex couples. We know how that’s going to end.

But here’s the reality.  When we no longer have a federal right for a person to marry someone of the same sex, we no longer have a federal right for a person to marry someone of a different race.  Loving v. Virginia is gone.  States can return to criminalizing and banning interracial marriages.

But also, the conservatives really should understand what they are doing.

The foundational protections for family formation in modern life started in the 1920s.  As part of anti-immigrant sentiment, in 1923, Nebraska passed a law prohibiting schools from teaching the German language to children because “the Legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear their children in the language of their native land.”[65]  In Meyer v. Nebraska, the Supreme Court declared that the state cannot ban the teaching of a foreign language because the Constitution forbids it from exercising the power to “foster a homogenous people.”[66]

In 1925, Oregon passed a law closing private schools that promoted the Catholic religion, the religion of immigrants, to instead promote public education for all. 

In Pierce v. The Society of Sisters of the Holy Names of Jesus and Marry, the Supreme Court disagreed, arguing that there is a fundamental right for parents to educate their children. “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”[67]

So, guess what else is gone—the right for the parents to educate their children.

When the draft opinion comes out, it will be huge.  The rights to contraception, abortion, marriage, and how you raise your child will no longer be guaranteed.  

Some states will recognize the modern world we grew up with.  Other states with Republican-controlled legislatures will not.  They will criminalize the choices we hold dear.

So when this decision comes out, it will be a start of a dark chapter.  But, it’s not the end of the world. 

It is only the beginning.  It is only the first day when you become part of the democracy around us. 

Third Question:  How Can We Best Respond?

If we are going back to the Constitution, let’s start with a moment of awe for what the Founders did. 

They had the gall to declare a right to govern ourselves.  Instead of letting the King decide, they said “We the People,” should be the ones to set our own course, our own destiny. 

In the Constitution, the words “We the People” are not just in there.  They are the first words in the constitution. [68]

Thomas Jefferson made clear that, there is nothing special about the Founders.  He said it was a group of men—and again, it was all men—who shaped the world they wanted. 

But Jefferson said that Democracy would only survive if each generation wrote the constitution to recreate the world as it meant to them.  He suggested a constitutional convention every twenty years “for periodical correction.”[69]

So, here’s the deal.  The Supreme Court is going to end the federal right to privacy and personal liberty.  As a way I explained this to my children, this is Book Five in the Harry Potter Series.  There are two more books, and we are the ones that will write the ending.

The Founders waited to form the Courts in Article III—the last of the three branches because it was supposed to be the weakest one.[70]

The Founders formed Congress first, in Article I.[71]

Up until Mitch McConnell’s attack on President Obama, after every Supreme Court term, Congress would simply enact new laws that overturned or changed the decisions.[72]

That’s how it was supposed to work.  The last time that happened was 2009—when Obama ran on the promise to overturn the Supreme Court’s Ledbetter decision that said women who got less pay than men had no standing to go to sue.[73]

In response, in 2009, Congress passed the Lily Ledbetter Act said, no, the new law is that women can sue when they get less pay for the same job.[74]

Congress has been functionally shut down since then.  The Filibuster stops the Senate. 

Do you know what word is not in the Constitution?  The Filibuster. 

And it is a word that means “pirate” in Dutch.  In 1917, the Senate codified this rule.[75] Mitch McConnell now invokes it for every single bill so nothing passes based on simple majority.

And as Senator McConnell suggested, the Republicans are planning to end it when he gets power back—why don’t we just do it now.

And how do we do that?

“We the People” will vote and will make sure everyone we know votes too.  Who is registered to vote?  Who voted in the presidential election in 2020?  Who voted this past week for school board elections?  Who is planning to vote for in June 7 primary for Congress? Who is planning to vote in the midterms on November 8?

In 2020, America had the highest voter turnout for President in over 100 years.  But it was only 66% of the eligible voters.[76]  In Sweden, Australia, Iceland, Japan, and Denmark, it’s more than 80% of voters.  Most of Europe is higher than 70%.[77]

We are supposed to lead the world in democracy.  We need to vote.  And, in response to the largest voter turnout in 2020, nineteen states—including Montana—made it harder for people to vote.[78]

We the People will vote.  And We the People, will organize and register as many people as we can.

But Why Vote, The Candidates Are The Same (Spoiler: Not True)

People tell me they do not vote because it won’t make the difference.  The parties are the same.

Do you know who perfected that nonsense?  Richard Nixon made this message a core of voter suppression.

When Nixon realized he could not win the young, the Black community, the cities, he stopped campaigning there—he wanted to ignore them to tell them, you do not matter.  We do not matter.[79]

They told them, don’t bother voting, JFK and I are the same.  The Republican and Democratic parties are essentially the same.  Only small differences exist, so please stay home.[80]

When you think your vote does not matter, it very much does.

If your vote didn’t matter, why would nineteen states change their laws out of fear you would use it?

If your vote didn’t matter, why would the Republican party promote cynicism by saying there’s no difference between the parties?

That’s not true.

In Montana, we have Republicans running for state offices on the promise to rewrite the constitution and end the right of privacy.

In Congress, we have Republicans promising to pass a federal law banning all abortions after six weeks.  

It matters who is in office.

We have elections on June 7 and again in November 8, 2022.

Go to the websites of candidates running for Congress, and running for Montana house and Senate.

Did they put abortion rights on the list of issues they will fight for?  If so, those are the candidates you vote for, you work for, and you help get elected.

But Why Vote, It’s Futile (Spoiler: Not True)

I also hear people say they don’t vote because it’s futile.  They voted in 2020, and looked what happened. Nothing.

Look, social justice takes more than one election.

Look how long those who opposed Roe v. Wade worked to get the victory they wanted.

And here’s the thing.  70% of Americans support abortion rights.[81]  But the people who consistently vote are in the 30%.  So, people, if you support our constitutional right to form our own families, get to the polls.

Martin Luther King, Jr. spoke eloquently about how “the arc of the universe bends towards justice.”  I’m not a fan of that quote, because I think it is misunderstood.  It’s a problem if people assume that justice will happen and they don’t have to work for it. 

Susan B. Anthony spent her life working for women’s right to vote.  She died in 1906.  She did not live to see the 19th Amendment pass in 1920.[82]

Martin Luther King, Jr. was assassinated as he worked for racial justice.  He was killed in April 1968.  In July 1968, Congress finally passed the Civil Rights Act, the first promise to fulfill his dream.[83]

Susan B. Anthony and Martin Luther King did not give up after one election cycle.

And neither can you.

For democracy to work, it’s going to have be a verb.  It’s going to have to be something we work for in every single election for the rest of our lives.

But Why Vote, One Vote Doesn’t Make A Difference (Spoiler: Not True)

I lastly hear people say they don’t vote, because what’s the point.  It’s one vote.  It’s one of hundreds at the local level, one of thousands at the state level, one of millions at the federal level. 

I have clients who were born in countries without the right to vote in a fair and free election.  My clients from Russia, Cuba, Haiti, Venezuela, El Salvador, Guatemala, Nigeria, Ghana, Kenya, Cameroon, China, Tibet, Iran, Iraq, Syria, Myanmar disagree with their government.  When they peacefully protested, they were arrested and beaten.  When they cast a vote, their vote was not secret and they were arrested and beaten for not voting he right way.  The right to vote was so important to them, they had to flee.  For them, their one vote was worth the price of losing their home, their family ties, their country.  

When people do not have the right to vote, they know how essential the vote is to control our own life.

That is the same right we want protected by the federal right to personal liberty and the right to form our family.

My father has a saying.   He always told me, that acts of kindness, may seem small.  Like drops of rain.  They fall from the sky.  They are soft. They are unobtrusive. 

But it is a mistake to think that they do not make a difference.

Because, when these soft drops of water combine, water is the only force that can level mountains and carve up valleys.

That is also the force of the vote. 

One vote may seem small, but when, We, the 70% who believe in Roe v Wade, combine our vote; 

When, We the People, combine our votes and we vote in every election for every candidate who stands up for Roe v. Wade, encourage our friends, family, and neighbors to vote in every election for every candidate who stands up for Roe v. Wade, and in volunteer to register voters so they can vote for those who stand up for Roe v. Wade

We will absolutely see a difference.

So, yes, the Supreme Court is dropping a decision that will end modern life as we know it.  States will ban and criminalize decisions that we need to form our families, and form our own life.

But that is not the end.  That is not the end.  If we vote, we get to shape our future.  If we vote, we get to shape our world.

So, register, organize, and vote!

-Kari Hong

[1][1] Josh Gerstein and Alexander Ward, Supreme Court Has Voted to Overturn Roe v. Wade, Draft Opinion Shows, Politico (May 3, 2022),

[2] Michael J. Gerhardt, Super Precedent, 90 Minn. L. Rev 1204,1205–06 (2006) (“Super precedents are those constitutional decisions in which public institutions have heavily invested, repeatedly relied, and consistently supported over a significant period of time. Super precedents are deeply embedded into our law and lives through the subsequent activities of the other branches. Super precedents seep into the public consciousness, and become a fixture of the legal framework.Super precedents are the clearest instances in which the institutional values promoted by fidelity to precedent—consistency, stability, predictability, and social reliance—have become irredeemably compelling.  Thus, super precedents take on a special status in constitutional law as landmark opinions, so encrusted and deeply embedded in constitutional law that they have become practically immune to reconsideration and reversal.”).

[3] Roe v. Wade, 410 U.S. 113 (1973).

[4] Hopgood v. State, 76 Ga. App. 240, 241, 45 S.E.2d 715, 716 (1947) (reversing a conviction for adultery because there was insufficient evidence that both parties were married). Not all states have decriminalized, repealed, or struck down adultery, fornication, and consensual same-sex sodomy crimes. See Christina Oehler, 16 States Where You Can Get that Cheating Jerk Thrown in Jail,Woman’s Day (June 23, 2015),

[5] See State v. Saunders, 381 A.2d 333, 346 (N.J. 1977) (Schreiber, J., concurring) (discussing the origins of fornication law, including its inclusion in the law called “An Act for the Punishment of Crimes (Revision of 1898)” and commenting that “there is no evidence that this statute was intended as anything but an attempt to regulate private morality”).

[6]  RANDALL KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY, AND ADOPTION 70-91 (Pantheon Books 2003) (discussing various laws and cases criminalizing interracial relationships from 1876 to the 1950s); see also Matthew J. Smith, The Wages of Living in Sin: Discrimination in Housing Against Unmarried Couples, 25 U.C. Davis L. Rev. 1055, 1058 (1992)  ( “One of the most significant changes has occurred in the criminal law. Historically, most states criminalized cohabitation. Today, most states have repealed these criminal statutes. In addition, many states have decriminalized fornication.”).

[7] Loving v. Virginia, 388 U.S. 1, 2 (1967) (striking down crime of interracial marriage).

[8] Lawrence v. Texas, 539 U.S. 558, 578–79 (2003) (striking down state sodomy laws that only targeted conduct involving intimacy shared by same-sex couples).

[9] Nancy D. Polikoff, A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of Lesbian Couples in the Twenty-First Century, 5 Stan. J. Civ. Rts. & Civ. Liberties 201, 267 n.21 (2009) (“For centuries such children had been filius nullius, the child of no one, meaning they had no legally recognized relationship with, including no right to support from, their mother or father.. . . Women who kept their children, including the black women who were excluded from most of the unwed-mother homes, faced harsh state policies, including denial of public assistance and eviction from public housing. Doctors sometimes sterilized them without their knowledge or consent. Their children’s birth certificates were sometimes stamped ‘bastard.’”).

[10] 24 A.L.R. 570 (Originally published in 1923) (“Except in Connecticut, a bastard cannot, in the absence of legislative provision, inherit from his ancestors or collateral relatives. As a bastard’s descendants, who seek to inherit from his ancestors or collateral relatives, claim by representation, they stand on the same footing as the bastard himself. The result is that if at the time of his death the bastard is incapable of inheriting a particular estate, his descendants, who claim through him, cannot inherit that estate.”).

[11] Id.

[12] Harry D. Krause, Equal Protection for the Illegitimate, 65 Mich. L. Rev. 477 (1967).

[13] Id.

[14] Levy v. Louisiana, 391 U.S. 68, 70 (1968) (striking down a state law that prohibited child born out of wedlock from prevailing in a wrongful death action against their mother.  “We start from the premise that illegitimate children are not ‘nonpersons.’ They are humans, live, and have their being.  They are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.”).

[15] Griswold v. Connecticut, 381 U.S. 479 (1965) (this decision first recognized a penumbra of federal privacy rights, which stitched together a shield against the general police powers of the states to criminalize intimacy).

[16] Eisenstadt v. Baird, 405 U.S. 438, 443 (1972) (striking down criminalization of providing contraception to unmarried persons).

[17] Roe v. Wade, 410 U.S. 113 (1973).

[18] “The full meaning of the Constitution’s text often eludes textualists.  By viewing the document’s clauses in splendid isolation from each other—by reducing a single text to a jumble of disconnected clauses—readers may miss the significance of larger patterns of meaning at work.”  Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 748 (1999).

[19] “A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States.” Dred Scott v. Sandford, 60 U.S. 393, 15 L. Ed. 691 (1857), superseded (1868); see also BRUCE ACKERMAN, WE THE PEOPLE 40-50 (1991) (arguing that the Constitution was twice reformed, first by Reconstruction and then by the New Deal).

[20] “The history and tradition most pertinent to an understanding of the Fourteenth Amendment’s due process protection of liberty is the story of why and how the Amendment came to be—a story of conflict, war, and reconstruction. Although the conflict and war had multiple causes,27 the words spoken in support of the Reconstruction Amendments make clear that the Amendments were inspired by rejection and repudiation of slavery.28 The rejection and repudiation of slavery were, in turn, the product of a successful political movement led by slaves, former slaves, and other abolitionists. The movement was grounded in human rights traditions that had been enshrined in the nation’s founding documents and stood in increasingly explicit challenge to the commodification of human beings. The Fourteenth Amendment is, then, illuminated by the history of slavery, antislavery, war, and Reconstruction; by repudiation of the traditions of slavery; and by the human rights traditions that drove antislavery and Reconstruction.” Peggy Cooper Davis, Contested Images of Family Values: The Role of the State, 107 Harv. L. Rev. 1348, 1353 (1994).

[21] “To think of family liberty as a guarantee offered in response to slavery’s denials of natal connection is to understand it, not as an end in itself, but as a means to full personhood. People are not meant to be socialized to uniform, externally imposed values. People are to be able to form families and other intimate communities within which children might be differently socialized and from which adults would bring different values to the democratic process. This reconstructed Constitution gives coherence and legitimacy to the themes of autonomy and social function sounded in Meyer, Pierce, Skinner, Barnette, and Prince. The idea of civil freedom that grows out of the history of slavery, antislavery, and Reconstruction entails more than the right to continue one’s genetic kind in private. It also entails a right of family that derives from a human right of intellectual and moral autonomy. It entails the right of every individual to affect the culture and embrace, act upon, and advocate privately chosen values. For parents and other guardians, civil freedom brings a right to choose and propagate values.  For children, civil freedom brings nothing less than the right to grow to moral autonomy, because the child-citizen, like the child-slave, flowers to moral independence only under authority that is flexible in ways that states and masters cannot manage, and temporary in ways that states and masters cannot tolerate.” Davis, supra n.20, at 1371–72.

[22] Among some of its decisions, the Warren Court decided Brown v. Board of Education, 347 U.S. 483 (1954) (racial segregation in schools is unconstitutional); Gideon v. Wainwright, 372 U.S. 335 (1963) (establishing a right to counsel in criminal trial); New York Times v. Sullivan, 376 U.S. 254 (1964) (protecting freedom of the press from libel suits); Griswold v. Connecticut, 381 U.S. 479 (1965) (this decision first recognized a penumbra of federal privacy rights, which stitched together a shield against the general police powers of the states to criminalize intimacy); Miranda v. Arizona, 384 U.S. 436 (1966) (excluding statements made to police in interrogations without the advising the defendant of their constitutional rights); Loving v. Virginia, 388 U.S. 1, 2 (1967) (striking down crime of interracial marriage).  The Warren Court “was the most progressive United States Supreme Court in our Nation’s history.  For those of us who see ourselves as civil libertarians, it was a bright and exciting moment in our Nation’s history in terms of protecting free speech, press freedom, separation of Church and State, civil rights. and criminal justice reform.”  Joshua Dressler, Reflections on the Warren Court’s Criminal Justice Legacy, Fifty Years Later: What the Wings of A Butterfly and A Yiddish Proverb Teach Me, 51 U. Pac. L. Rev 727, 727–28 (2020). 

[23] Gino Spocchia, Almost 70 percent of Americans Back Abortion Rights, Polling Finds, Amid Fears Supreme Court Will Vote Down Roe vs. Wade, Independent (May 3, 2022)

[24] Laurence H. Tribe, Lion of Liberalism, Time (Aug. 4, 1997),,33009,986810,00.html (“If John Marshall was the chief architect of a powerful national government, then Brennan was the principal architect of the nation’s system for protecting individual rights. Intellect alone could never have achieved so much, though Brennan’s intellectual brilliance was indispensable. What animated him was passion and compassion, insight and empathy, and a vision of a Constitution of, by and for the people.”).

[25] Joan Biskupic, Justice Blackmun Dies, Leaves Legacy of Rights, Wash Post (Mar. 5, 1999) (“Blackmun was appointed both to an appeals court and to the Supreme Court by Republican presidents. But by the time he retired, he was the most liberal member of the bench. His ideological odyssey intrigued political Washington but was also a measure of the court’s transformation from the progressive post-Earl Warren era of the ’70s to the conservatism of the ’90s.”).

[26] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 866 (1992).

[27] Huma Khan, David Souter: A Classic Yankee Republican, ABC News (May 2, 2009), (“Though a Republican, Souter deviated from other conservatives on many issues. His opinions on controversial topics like abortion and school prayer irritated some Republicans, many of whom think his nomination was one of the biggest presidential blunders in modern history.  But some who knew him say he did not come in with an agenda and did not care to push decisions in a particular direction. Instead, he came in with an open mind and looked to past cases and the existing law to come to his decision.”).

[28] See supra notes 25 & 26.

[29] Clarence Thomas, Oyez

[30] Samuel A. Alito, Jr., Oyez

[31] Neil Gorsuch, Oyez

[32] Brent Kavanaugh, Oyez

[33] Rebecca R. Ruiz, Amy Coney Barrett Signed An Ad in 2006 Urging Overturning The ‘Barbaric Legacy’ of Roe v. Wade, N.Y. Times (Oct. 1, 2020) (“But with news on Thursday that Judge Barrett had signed the open letter, which was also signed by her husband, Jesse Barrett, a fellow lawyer and former federal prosecutor, the nominee’s view on the ruling became clear. Though the judge’s participation in other groups had indicated her personal opposition to abortion, her stance on the court decision specifically had not been widely known.”).

[34] “This puts Catholic judges in a bind. They are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty. They are also obliged to adhere to their church’s teaching on moral matters.” John H. Garvey & Amy V. Coney, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303, 303 (1998).

[35] John G. Roberts, Jr., Oyez

[36] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J.,, concurrence in part) (“The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”). More pointedly, the decision explains “the emptiness of the ‘reasoned judgment’ that produced Roe is displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in these and other cases, the best the Court can do to explain how it is that the word “liberty” must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.”  Id. at 683 (Scalia, J., concurring in part).

[37] In a 5-4 decision, Chief Justice Roberts authored the decision that upheld the law known as Obamacare.  See Nat’l Fed. Of Independent Businesses v. Sebelius, 567 U.S. 519 (2012).

[38] Zoe Strozewski, Mike Pence Praises Hungarian Leader’s Conservative Polices, Hopes SCOTUS Bans Abortion, Newsweek (Sep. 23, 2021) (“Recognizing Hungary’s own success in decreasing abortions, Pence expressed hope that the U.S. could do the same, especially in light of the conservative majority instated in the U.S. Supreme Court by the administration he served in with former President Donald Trump. He also spoke of the 300 conservative judges appointed to federal courts during the administration, including three Supreme Court justices, the AP reported.  ‘We may well have a fresh start in the cause of life in America.’ Pence said. ‘It is our hope and our prayer that in the coming days, a new conservative majority on the Supreme Court of the United States will take action to restore the sanctity of life at the center of American law.’”).

[39] Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549, 551 (S.D. Miss. 2019), aff’d, 951 F.3d 246 (5th Cir. 2020).

[40] “In an unbroken line dating to Roe v. Wade, States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban. Thus, we affirm the district court’s invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief.”  Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 269 (5th Cir. 2019).

[41] Dobbs v. Jackson Women’s Health Org., 19A1027, Docket #1 (Mar. 16, 2020),

[42] Petitioner’s Writ of Petition for Certiorari at 5, 19A1027, (Jun. 15, 2020),

[43] Nina Totenberg, Justice Ruth Bader Ginsburg, Champion of Gender Equality, Dies at 87, NPR (Sep. 18, 2020),

[44] Barbara Sprunt, Amy Coney Barrett Confirmed to Supreme Court, Takes Constitutional Oath, NPR (Oct. 26, 2020),

[45] Petition Granted 19A1027, (May 17, 2021),

[46]The U.S. Supreme Court, Judicial Learning Center

[47]Brief for Petitioners at 1, 19A1027 (Jul. 22, 2022) ) (“Roe and Casey are thus at odds with the straight- forward, constitutionally grounded answer to the question presented. So the question becomes whether this Court should overrule those decisions. It should.“).

[48] Oral Argument, Dobbs v. Jackson Women’s Health Organization at 14–15, 19-1392 (Dec. 1, 2021) (“Now sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices.  The newest ban that Mississippi has put in place, the six-week ban, the State sponsors said we’re doing it because we have new justices on the Supreme Court.  Will this Court survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”).

[49] Dobbs v. Jackson Women’s Health Organization, Opinion, First Draft (Feb 10, 2022) at 5; id. at 9  (“The Constitution makes no express refence to a right to obtain an abortion. . . .” The decision criticizes Roe v. Wade because “the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”).  The draft opinion argues that “attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much.”  Id. at 32.

[50] Jessica Glenza, ‘It Will Be Chaos’: 26 States in US Will Ban Abortion if Supreme Court Ruling Stands Guardian (May 3, 2022)

[51] “In truth, that the Convention delegates deliberately drafted a broad and undefined right of ‘individual’ privacy was more a testament to and culmination of Montanans’ continuous and zealous protection of a core sphere of personal autonomy and dignity than it was an attempt to create a greater right than that which already existed by historical precedent. 

Armstrong v. State, 1999 MT 261, ¶ 36 (1999) (Nelson, J.) (citing William C. Rava, Toward a Historical Understanding of Montana’s Privacy Provisions, 61 Alb. L. Rev. 1681, 1716–17 (1998). (striking down law that prohibited physician assistants from performing abortion as a violation of Article II, Section 10 of the Montana Constitution).  “As noted, Article II, Section 10 of the Montana Constitution was intended by the delegates to protect citizens from illegal private action and from legislation and governmental practices that interfere with the autonomy of each individual to make decisions in matters generally considered private.”  Id. at ¶ 35.

[52] Eric Dietrich, Prominent Republican Says Montana Should ‘Throw Out’ State Constitution Montana Free Press (Nov. 18, 2021)

[53] Arren Kimbel-Sannit, Election Lookahead: A Possible GOP Supermajority, A Midterm Environment, Looking U.S. House Races Daily Montanan (Feb. 20, 2022) (“A bicameral supermajority is a powerful tool in state politics, and the possibility of Republicans winning two-thirds majorities in the next session looms large over the 2022 election. The party already holds such a majority in the state House and is just two seats shy in the state Senate.”).

[54] Nadine El-Bawab, Proposed Louisiana Bill Seeks to Criminalized Abortion, Charge Women With Murder ABC News (May 12, 2022),

[55] Ed Pilkington, Murder Charges Dropped Against Texas Woman for ‘Self-Induced Abortion,’ Guardian (Apr. 10,2 2022)

[56] Caroline Kitchener, The Next Frontier for The Antiabortion Movement: A Nationwide Ban, Wash Post (May 2, 2022) (“A group of Republican senators has discussed at multiple meetings the possibility of banning abortion at around six weeks, said Sen. James Lankford (Okla.), who was in attendance and said he would support the legislation. Sen. Joni Ernst (R-Iowa) will introduce the legislation in the Senate, according to an antiabortion advocate with knowledge of the discussions who spoke on the condition of anonymity to discuss internal strategy.”).

[57] Lexi Lonas, McConnell Says National Abortion Ban Possible, The Hill (May 7, 2022),

[58] Jonathan Chait, Will Social Conservates Make Mitch McConnell Kill the Filibuster, New York  (May 11, 2022)  (“Many Democratic critics of the filibuster say McConnell is lying [about not abolishing the rule]. ‘When the opportunity presents itself, there’s no doubt in my mind that they’ll change the rules to pass a bill criminalizing abortion federally,’ says Senator Chris Murphy.”).

[59] Ian Max Stevenson, After Roe Decision, Idaho Lawmakers May Consider Restricting Some Contraception, Idaho Statesman (May 10, 2022)

[60] Editorial Board, Louisiana Reveals The War on Rights That Is Coming If Roe Is Overturned, Wash Post (May 10, 2022)

(discussing proposed bill that “appears to declare the use of in-vitro fertilization, intrauterine devices and emergency contraception to be homicide, too.”).

[61] Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 701, 134 S. Ct. 2751, 2765, 189 L. Ed. 2d 675 (2014) (upholding religious exemption for a business owner who seek to be “excluded from the group-health-insurance plan they offer to their employees certain [which covers] contraceptive methods that they consider to be abortifacients”) (emphasis added).

[62] Nico Lang, The Architect of Texas’ Abortion Ban Wants to Make Gay Sex Illegal Again, Them (Sept 20, 2021)

[63] Pavan v. Smith, 137 S. Ct. 2075, 2077, 198 L. Ed. 2d 636 (2017) (“Because that differential treatment infringes Obergefell ‘s commitment to provide same-sex couples “the constellation of benefits that the States have linked to marriage,” id., 135 S. Ct., at 2601” the Court struck down a court order that had prevented both lesbian mothers to be on their child’s birth certificate).

[64] Pavan v. Smith, 137 S. Ct. at 2079 (Gorsuch, J., dissenting) (“Neither does anything in today’s opinion purport to identify any constitutional problem with a biology based birth registration regime.”).

[65] Meyer v. Nebraska, 262 U.S. 390, 401 (1923) (“It is said the purpose of the legislation was to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals, and ‘that the English language should be and become the mother tongue of all children reared in this state.”).

[66] Id. at 402.

[67] “We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”  Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534–35 (1925).

[68] U.S. Const., Preamble

[69] Robert J. Martin, The Case for Convening A Constitutional Convention, N.J. Law., 6/97, at 39, 42 n.6 (1997)  (nothing that Thomas Jefferson called for “a constitutional constitution be convened every 20 years ‘for periodical repairs,’ thereby affording each generation the ‘right to choose for itself the form of government it believes most promotive of its own person.’”) (citing Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816) (cited in Merrill Peterson, Mr. Jefferson’s Sovereignty of the Living Generation, 52 Va. Q .Rev. 437, 443-47 (1976)).

[70] U.S. Const, Art. III; see Alexander Hamilton, Federalist Paper No. 78 (“the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.  This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”).

[71] U.S. Const, Art. I.

[72] In Geduldig v. Aeillo, 417 U.S. 484, 497 n.21 (1974) and again in General Electric Co. v. Gilbert,, 429 U.S. 125 (1976), the majority opinions notoriously claimed that discrimination towards pregnant women is not based on gender because the employer may hire all “pregnant persons,” which is not based on sex.  “[T]he exclusion of pregnancy from coverage under California’s disability-benefits plan was not in itself discrimination based on sex.” 429 U.S. at 135.  In response, and in overturning both decisions, in 1978, Congress passed the Pregnancy Discrimination Act of 1978.  See Reva B. Siegel, You’ve Come A Long Way, Baby: Rehnquist’s New Approach to Pregnancy Discrimination in Hibbs, 58 Stan. L. Rev. 1871, 1878 (2006).

[73] Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 628 (2007), overturned due to legislative action (Jan. 29, 2009).

 [74] Pub. L. No. 111-2 (Jan 29, 2009); Sheryl Gay Stolberg, Obama Signs Equal-Pay Legislation, N.Y. Times (Jan. 29, 2009)

[75] Filibuster, U.S. Senate,

[76] Drew Desilver, Turnout Soared in 2020 As Nearly Two-Thirds of Eligible U.S. Voters Cast Ballots for President, Pew Research Center (Jan. 28, 2021)

[77] Drew Desilver, In Past Elections, U.S. Trailed Most Developed Countries in Voter Turnout Pew Research Center (Nov. 3, 2020),

[78]Voting Laws Roundup: October 2021, Brennan Center (Oct. 4, 2021)

[79] See generally Gloria Steinem, In Your Heart You Know He’s Nixon, N.Y Mag (Oct. 28, 1968),; James Boyd, Nixon’s Southern Strategy, N.Y. Times (May 17, 1970),

[80] Kennedy-Nixon Presidential Debate Transcript, Commission on Presidential Debates (Sept. 26, 1960),  (“The things that Senator Kennedy has said many of us can agree with. “).

[81] Gino Spocchia, Almost 70 percent of Americans Back Abortion Rights, Polling Finds, Amid Fears Supreme Court Will Vote Down Roe vs. Wade, Independent (May 3, 2022)

[82] Editors, Susan B. Anthony, History (Feb. 25, 2022)’s%20Death-,Susan%20B.,have%20the%20right%20to%20vote.

[83] Amy Sherman, Tracing Civil Rights Legislation Before and After Martin Luther King Jr.’s Death, Politifact (Jun. 8, 2020)

12.5%: The Reality of Police Encounters with Native Americans in Montana

According to his brother, Terrance LaFromboise, Brendon Galbreath “was always smiling.” A member of the Blackfeet Nation, Brendon grew up in Browning, Montana. He left Browning to attend UCLA, where he studied pre-med, and returned to Montana at the start of the pandemic after the death of his grandmother. He lived in Missoula with the intention to transfer colleges to remain close to his family. Interviews of his friends and family reveal that Brendon was a kind and gentle individual who wanted to spend his life helping others. 

On August 12, 2021, Brendon was involved in a Missoula police officer shooting. Per a Missoula Police Department statement, Brendon was stopped by an officer for a suspected DUI and fled the scene. The officer pursued Brendon to Stephens Ave., north of Beckwith St. According to the initial police report, Brendon allegedly fired a handgun. The officer then allegedly returned fire. Brendon was struck during the shootings and taken to St. Patrick Hospital where he died. Later, administrator for the Division of Criminal Investigation, Bryan Lockerby, claimed there was a “strong[ ] indicat[ion]” that Brendon died by suicide. 

Brendon’s family spoke with the Missoula Police Department extensively but has been left with conflicting information over his death. The family has been told that Brendon likely died by suicide and that Brendon and Missoula police fired simultaneously with no way to know which bullets caused his death. 

Brendon’s formal inquest will take place next week Friday the 29th at 9:00 a.m., at the Missoula County Courthouse. The family has asked people to demonstrate their support at noon outside the Courthouse. Please visit the family’s GoFundMe page for more information.

Unfortunately, officer-involved deaths are not unique for Indigenous peoples in Montana. In 2012, Edward Ronald Dale Stump, a member of the Chippewa Cree Tribe, was killed inside his home after reportedly firing at a Yellowstone County deputy—this incident was found justified. Again in 2020, the killing of Coleman Stump, another member of the Chippewa Cree Tribe, was deemed a justifiable homicide committed by officers. Coleman Stump was killed during a confrontation with police in an apartment parking lot. His sisters report dissatisfaction with how his inquest was handled—no forensics proved Coleman Stump had a gun when killed by police, few witnesses were called, and testimony centered on the “violent” nature of the call despite the initial encounter reporting as low-priority. The sisters reported there were “no Natives” on the coroner’s jury.

Indigenous peoples in Montana experience disproportionate police violence. Native Americans represent only 6.7% of Montana residents. But between 2013-2019, Native Americans made up 12.5% of police killings in Montana. This number, though already incredibly high compared to the amount of Native Americans within Montana, is potentially underreported—15% of police killings in this timeframe were “unknown.” Because national databases can exclude the tracking of fatal encounters between Native Americans and police due to a failure to include Native Americans as racial or ethnic categories, Indigenous peoples often go “misidentified, undercounted, or labeled ‘unknown’ or ‘other.’” In a shocking display of discrimination, Lieutenant Brandon Wooley of the Billings Police Department responded to the truth of discriminatory policing against Native Americans by stating, “Native American culture doesn’t need less policing. They truly need more policing.” 

The disproportionate police violence against Native Americans in Montana has far reaching consequences beyond just the lives it ends. Cheryl Horn, a member of the Assiniboine Tribe and a resident of Fort Belknap, reports that she would not call law enforcement for help and does everything in her power to avoid contact with them. In 2017, her 24-year-old nephew Preston was killed after Billings police officers shot him 74 times. This distrust leads to a distrust of the justice system more broadly. As Cheryl explains, she had no faith that the all-white jury would do anything different than what they did–find the killing of her nephew justified. 

The reality of policing in Montana is that it discriminates against and targets Indigenous peoples. Despite the thoughts of Billings Lieutenant Wooley, more policing is not the answer to the disparate violence committed against Indigenous communities here. Changing the systemic racism within Montana policing is not something that can be fixed without involving Indigenous voices and perspectives. Law enforcement and the judicial system must start listening to the people they are supposed to serve and protect. 

L.B. v. United States: Highlighting the Pervasiveness of Sexual Assault by Law Enforcement Officers and Crimes Against Women in Indian Country

*Throughout this post the author uses the terms “Indian” and “Indian country” as legal terms of art to refer to Native Americans, Indigenous peoples, and other tribal members that have lived on the North American continent since time immemorial. The author uses the term Indian when referencing legal concepts to keep consistent with the field of Federal Indian Law. 

Today the Montana Supreme Court will hear arguments in L.B. v. United States. The case originated in federal court when L.B. filed a claim against the United States, under the Federal Tort Claims Act, for the conduct of Buruea of Indian Affairs (BIA) Officer Dana Bullcoming, who abused his power and authority to sexually assault L.B., resulting in her pregnancy and the subsequent birth of D.B. The district court found that Officer Bullcoming did not act within the “scope of his employment” when he sexually assaulted L.B.; ergo, L.B. could not hold the U.S. liable for Offer Bullcoming’s misconduct. The district court read Montana precedent to limit the scope of employment to only actions taken by employees that further an employer’s interest, and it determined that Officer Bullcoming’s conduct did not fit that test. On appeal, the Ninth Circuit certified to the Court whether, in Montana, law enforcement officers act within the scope of their employment when they sexually assault members of the public through use of their power and authority.

The Ninth Circuit certified a narrow, but immensely significant, part of L.B.’s case to the Court. If she prevails, her case is far from over, but she may proceed with her federal claim to hold the U.S. liable for Officer’s Bullcomings violation of her rights. Though the Court is constrained to a legal analysis of what it wants the scope of employment to encompass in Montana, from an equitable and policy standpoint, L.B.’s situation represents the harsh truth of the disparities between sexual assaults within and outside reservation boundaries. 

Montana state law already permits liability on the part of law enforcement agencies for the illicit conduct of on-duty officers. When a state, county, or municipal law enforcement officer assaults a private citizen, the agency may be held liable. But Officer Bullcoming was a federal employee, which presents a heightened question compared to the relative straightforwardness of other law enforcement officer assaults. To hold the United States liable, Officer Bullcoming’s sexual assault of L.B. needs to be within the scope of his employment. 

This question to the Court highlights a large contrast between the remedies and protections available to citizens outside reservation boundaries, where law enforcement in Montana primarily operates under state, county, or municipal laws, and those available to citizens within reservation boundaries, where federal BIA officers hold authority. 

Indian country includes the land within the limits of any federally recognized Indian reservation. Generally, state laws do not apply within Indian country. However, federal law does. The BIA is a federal agency with jurisdiction over criminal activity in Indian country. BIA officers may enforce both tribal and federal laws within reservations. A private citizen in Montana is much more likely to interact with a federal officer within reservation boundaries compared to outside reservation boundaries. This disparity in interactions primarily impacts Indigenous communities. 

The different standards between federal officers and the rest of law enforcement in Montana create a greater difficulty for Indigenous peoples to hold a law enforcement officer’s employer accountable for their illicit conduct. This in turn contributes to the epidemic of violence against Indigenous women.

The numbers that reflect the probability an Indigenous woman will experience violence within their lifetime are egregious. Some reservations report missing and murdered Indigenous women at ten times the rate of the national average. Eighty percent of Indigenous women “have experienced violence in their lifetime.” Indigenous women “experience the highest rates of sexual assault and violence in the United States.” Overwhelmingly, these violent crimes are committed by non-Indian perpetrators. 

With such a high prevalence of violent crime, logically the importance of adequate and informed policing to keep communities safe should become a priority. However, violent crimes—including sexual assault—are too often committed by law enforcement officers. 

As discussed in Professor Michelle S. Jacobs’s article, Sometimes They Don’t Die: Can Criminal Justice Reform Measures Help Halt Police Sexual Assault on Black Women?, published in the Spring 2021 Harvard Journal of Law and Gender, law enforcement sexual misconduct is not the hidden mystery that many want or claim it to be. This sexual misconduct includes any behavior that a law enforcement officer commits that “takes advantage of [their] position . . . to misuse his/her power and authority to commit a sexual act or to initiate or respond to a sexual act initiated by another person.” Under 18 U.S.C. § 242, this misconduct can be punished, but only when the victim is detained or arrested. 

Despite documentation that police sexual misconduct is real, little has been done to address it. In her article, Professor Jacobs points out five issues that the International Association of Chiefs of Police identified as barriers to addressing and reducing this conduct. These barriers included insufficient written policies that define and prohibit sexual misconduct, ineffective training to prevent sexual misconduct, the absence of a database listing officers accused of sexual misconduct, “inadequate” measures to hold law enforcement officers accountable, and the habit of law enforcement officers to stick together and not cooperate in the investigation of fellow officers. Professor Jacobs notes that these are all still issues. 

These acts of sexual misconduct are not only terrible for the most direct reasons, but also because sexual misconduct committed by law enforcement officers alienates the entire community. This incentivises people to avoid law enforcement officers and to not call them when they need help, which contributes to the underreporting of violent crimes within Indian country. 
With its decision in L.B. v. United States, the Court could recognize the real occurrence of law enforcement assaults and the disparate access to remedy from law enforcement assaults for specific communities. Holding this assault within the scope of a federal officer’s employment, would both address, in part, the difficulties in holding law enforcement accountable and aid in the safety of Indigenous communities within the State.

Prolonging the Inevitable: Student Loans as a Social Justice Issue

This week, President Biden extended student loan forbearance until August 31, 2022. This marked the sixth extension on student loan repayments since the Trump Administration imposed a moratorium due to COVID-19 two years ago. President Biden noted that millions of student loan borrowers would face economic hardship if repayments resumed in May as planned. This new extension means that borrowers’ payments are automatically suspended without penalty or accrual of interest until August 31, 2022. 

Though these extensions offer student loan borrowers some much needed respite, many are calling on the President to do more. In a joint statement issued by Senate Majority Leader Chuck Schumer, seven lawmakers implored President Biden to cancel student loan debt entirely. The NAACP echoed these concerns, adding that student loan debt is a racial and economic justice issue for Black Americans. Clearly, after two years the government has demonstrated it can survive without collecting on this debt. “With each and every repayment extension,” NAACP national director of youth and college, Wisdom Cole, said in a statement to Joe Biden, “you make a stronger case for canceling it.” 

The negative consequences  of student loan debt have long been documented. Student loan debt disproportionately harms low-income borrowers and the families of low-income borrowers. In addition to a lack of generational wealth with which to fund their college experiences, low-income students face significant additional barriers to completing higher education as a direct result of their socioeconomic status. These students typically need to work during college, struggle to cover their living expenses, and are often the first in their families to attend college. These barriers can cause low-income borrowers to drop out of school and default on their loans, thereby negating any perceived benefit that a college education promises. Approximately one-third of low-income borrowers drop out of four-year colleges, 10% more than overall student borrowers. 

Student debt is oppressive for many families in the United States. In 2019, one in five households had student loan debt compared to one in ten in 1989. Struggles with repaying student loan debt can negatively impact borrowers’ credit scores, their prospects of home ownership and car ownership, and their mental health. It also causes job alienation and dissatisfaction. These burdens have implications for the entire economy as well. The strain of student loan debt manifests in the form of reduction in business formation, greater vulnerability to economic shocks, and reduced consumption spending. 

Student loan debt most disparately affects Black families, and particularly Black women. Regardless of post-graduation incomes, Black graduates have, on-average, more student loan debt than their white counterparts. Though the average white college graduate owes approximately $28,000 in student loan debt four years after graduation, for Black graduates that number is, on average, $52,000. A major contributor to this disparity is that, for systemically racist reasons, Black families have far less wealth to draw on. Entering higher education often means engaging with a racist system built to oppress Black people and perpetuate the wealth divide. For this and for other reasons, Black students drop out of college at disproportionate rates. Black students who graduate go on to struggle with a racist job market, underemployment, and lower wages compared to white graduates. So in addition to taking on greater debt at the outset, Black students are met with racism at every step of their college and post-grad experience, and in the end they reap fewer benefits from the loans they took out to finance their education. 

Student loan debt reinforces cycles of poverty; this perpetuates mass incarceration amongst lower socioeconomic groups. The repetition of poverty to prison back to poverty contributes to the “achievement gap”—a measure of the systemic disparity between the educational opportunities afforded to BIPOC children compared to their white counterparts. Due to a number of systemic issues, BIPOC persons are more likely to experience poverty; this, along with other systemically racist factors, contributes to the likelihood of incarceration, which all but guarantees a return to poverty upon release. It is a vicious cycle, and student loan debt preys on those stuck in it. 

Student loan debt is a social justice and a criminal justice issue. It disproportionately harms communities that are more vulnerable to the inequities of the criminal justice system and feeds extreme class divides. Merely prolonging the consequences of student loan debt will not solve these disparities. 

The Emmett Till Antilynching Act Compared to Racially Motivated Police Violence

After over a century of failed attempts to pass similar legislation, this week President Biden signed into law the Emmett Till Antilynching Act. The bill was introduced by Senators Cory Booker and Tim Scott and Representative Bobby Rush. At 75, Representative Rush is only five years younger than Emmett Till, the namesake of the Act, would be today had he not been murdered in the middle of the night by a white mob. 

The Act amends 18 U.S.C. § 249, the Hate Crime Acts, to include the following definition of lynching: whoever conspires to commit any offense under paragraph (1), (2), or (3) shall, if death or serious bodily injury (as defined in section 2246 of this title) results from the offense, be imprisoned for not more than 30 years, fined in accordance with this title, or both. 

Effectively, the Act recognizes that enhanced punishment is appropriate for public killings motivated by “race, color, religion, or national origin of any person.” Though it is incredibly important that the the Act finally recognizes that a lynching is a hate crime and the Act is still prevelent today due to continued racially motivated killings, the entirety of 18 U.S.C. § 249 struggles to address the systemic racially motivated violence deeply embedded in United States police authorities. 

In 1955, at 14 years old, Emmett Till traveled from Chicago, Illinois, to Money, Mississippi, to visit his extended family. During his visit, Till went to a grocery store with his cousins and their friends. He allegedly whistled or attempted to flirt with a white woman, Carolyn Bryant.  Four days later, her husband, Rob Bryant, and brother-in-law, J.W. Milam, kidnapped Till from his family’s home in the middle of the night. Three days after Till’s kidnapping, his mutilated body was found in the Tallahatchie River. 

Rob Bryant and J.W. Milam were charged with the murder of Till. In closing argument, defense attorney Sidney Carloton told the jury, composed entirely of white men, that their “ancestors will turn over in their grave” if “every last Anglo-Saxon” member of the jury did not have “the courage to free these men.” The jury acquitted Bryant and Milam. In January 1956, Bryant and Milam published murder confessions in Look magazine. The confessions detailed brutal descriptions of Till’s death. Carolyn Bryant later admitted to hyperbolizing her interactions with Till. The U.S. Department of Justice ended its latest investigation into Till’s murder in December of 2021. To date, no one has been found guilty of any crime associated with Till’s death.

The tragedy of Emmett Till is well recognized as a catalyst to the Civil Rights Movement of the 1950s and 1960s. In 2022, the Emmett Till Antilynching Act finally codifies a recognition of the extreme terror and generational harm caused by racially motivated public killings. 

Unfortunately, lynchings are not a crime of the past. Though the Act can now address a lynching as a hate crime, racially motivated violence committed by police officers will likely continue unchecked. 

The modern murders of Black people committed by police officers line up closely with the lynchings committed throughout the late 1800s into the mid 1900s—both public spectacles, both used to intimidate and harass Black communities, both often without any resulting criminal charges. Lynchings terrorized Black communities. At any time for any reason, a lynch mob could get away with murdering a Black person. Today, at any time for any reason, a police officer can get away with murdering a Black person. The systemic racism rooted in policing is not a newfound concept and is closely intertwined with what we now define as hate crimes.

But even if charged criminally for murder, it is highly unlikely for a police officer to be charged and convicted of a federal hate crime.

Overall, hate crimes are difficult to prosecute. And police officers are even harder to hold accountable. Be it reluctance on the part of the prosecutor or simply a lack of clear evidence, what arguably could be a hate crime often appears before a court as a standard criminal offense.

It is difficult to hold officers accountable for harm done to individuals. Due to the narrowness of what courts are willing to acknowledge as “excessive force,” there is often no remedy for this sort of police action. Statistically, excessive force in policing is committed at disproportionate rates based on race, with Black people being the most likely to suffer at the hands of police. Too many cases of police murdering unarmed Black persons go without criminal action or civil redress. 

Coupled together—a general difficulty to prosecute hate crimes with a general lack of holding police accountable—what should be a clear cut hate crime is not considered so clear cut when committed by a police officer. 

In 2021, police officer Derek Chauvin was convicted of second- and third-degree murder as well as second-degree manslaughter after murdering George Floyd, a Black man, in broad daylight surrounded by witnesses for allegedly using a counterfeit $20. Chauvin also pled guilty in federal court to depriving Floyd of his constitutional rights. Despite the longstanding connection between racist police tactics and the public deaths of Black people, along with the obviously unnecessary methods of restraint used by Chauvin to kill Floyd, the Minnesota attorney general found “no evidence” to charge Chauvin with a hate crime in conjunction with the murder. Had Chauvin not been a police officer, there is a much greater chance “evidence” for a hate crime would appear, as seen in the convictions of Ahmaud Arbery’s murderers. 

In 1922, over 3,000 Black people marched the streets of Washington, D.C. to protest lynchings and the terror these abhorrent displays of violence forced onto Black communities. In 2020, protestors took to the streets in Washington, D.C. to again protest the public murders of Black people—this time specifically murders committed by police. It took the United States government a century from the 1922 protest to codify its acknowledgment of the racial motivations behind public lynchings. Hopefully, it does not take another century to address the public murders and terrorizations of Black communities by police.

A Return to In-person and a Return to the School-to-Prison Pipeline

The World Health Organization declared Covid-19 a global pandemic on March 11, 2020. In the wake of this declaration, many schools shifted to “distance learning” with hopes to curb the spread of the disease. Two years later, most states have relaxed Covid precautions, and most schools have returned to in-person learning. Since the return to in-person learning, an examination of school-based complaints in North Carolina suggests that remote learning highlighted the systemic issues with the school-to-prison pipeline. 

The “school-to-prison pipeline” channels children from public schools into the criminal justice systems. School infractions met with zero-tolerance policies have resulted in the “suspensions, expulsions, and arrests of tens of millions of public school students.” Student suspension is directly linked to a higher likelihood of dropping out, which in turn exposes children to extreme risks of incarceration. And children who get involved with the juvenile justice system at an earlier age because of zero-tolerance policies are more likely to be involved with the criminal system as adults.

The tendency to remove children from school and push them into juvenile justice programs—like all issues with the criminal justice system—disproportionately affects Black, Indigenous, and People of Color (BIPOC) communities, LGBTQ+ communities, lower socioeconomic communities, disabled persons, and persons struggling with mental health

Since the start of remote learning, North Carolina has seen drastic decreases in the number of school-based juvenile delinquency claims. Elizabeth Thompson wrote on this statistical trend for North Carolina Health News, and the following is a summarization of her findings: 

Though the total number of school-based complaints did decrease over the past decade, thanks in part to reforms aimed at disrupting the school-to-prison pipeline, school-based complaints remained roughly half of overall complaints. 

But in the 2019-2020 school year, when children in North Carolina shifted to remote learning, school-based complaints dropped “to about 30% of total complaints.” And “over 70% of North Carolina counties saw a decrease in school-based complaints.” In 2020-2021, the first full year of remote learning for some schools, “school-based complaints sank to just 7% of overall complaints.” 

Virginia Fogg, attorney for Disability Rights North Carolina suspects the complaints dropped because children “haven’t been in school, they couldn’t get suspended. They couldn’t get referred.” Thompson created an incredibly telling chart to visualize this trend

A decrease from nearly half to 7% suggests that remote learning had a definite impact on school-based complaints. 

When children were sent to remote learning they were also sent away from “School Resource Officers” (SRO) and other disciplinary policies. SROs are law enforcement officers located on school campuses. Statistically, SROs are more discipline focused than school administrators. Students that attend schools with SROs are more likely to be “arrested and referred to the criminal justice system.” When children participated in remote learning, SROs did not have the same access they did to students compared to an in-person environment. Children were also removed from “zero-tolerance” policies that the majority of public schools utilize. Zero-tolerance policies predetermine consequences for specific actions, without any consideration for “why” a student did what they did. When students attend classes in-person, referrals for punishment under the umbrella of a zero-tolerance policy may lead to suspension, expulsion, or a referral to an SRO, thereby taking a child out of the classroom and exposing them to the criminal justice system. Originally, zero-tolerance policies aimed to prevent only the “most serious” criminal behavior: firearms and illicit drugs on school campuses. But over time, these zero-tolerance policies have devolved into absolutely ridiculous suspensions—such as twirling a pencil or “finding” a pocket knife and turning it into a teacher. 

Clearly, taking children away from this system of punishment significantly impacted their school-based exposure to the criminal justice system. But sending children home for remote learning is not a long-term solution. As in-person learning becomes the default again, many children return to school with an increased risk of entering the school-to-prison pipeline. The same pandemic that cut school-based complaints for a few years also exacerbated risk factors such as food and housing insecurity as well as increased stress and anxiety levels in children. Additionally, across the nation, legislatures target LGBTQ+ and BIPOC communities. 

Children already at a statistical disadvantage will face even more challenges in schools and consequently school punishment tailored to disproportionately affect them. 

The pandemic’s freeze on school-based complaints should glaringly demonstrate that a major factor to the school-to-prison pipeline is the current system of student punishment within schools. To fix this issue long-term requires a serious reassessment of zero-tolerance policies and the use of SROs. 

Idaho HB675

***Update on the Texas Anti-Trans Directive***

Texas Governor Abbott has filed an accelerated interlocutory appeal in response to the Travis County District Court’s temporary restraining order in the case of Doe v. Abbott, which we discussed in last week’s blog post. Governor Abbott filed the appeal pursuant to Texas Civil and Practice Remedies Code 51.014(8), which allows for an immediate appeal from an order that denies “a plea to the jurisdiction.” Consequently, the hearing that was set for today has been put on hold. On Wednesday, community organizers held a rally in support of transgender children’s rights in Austin, Texas, in reaction to Governor Abbott’s directive.


In its latest echo to Texas, the Idaho House of Representatives passed a bill Tuesday, Mar. 8, that, if signed into law, would make it a felony to provide youths with gender-affirming care. Not only does this bill go after medical professionals doing their jobs, it would punish the guardians of transgender, gender diverse, and nonbinary youth if they permit a youth in their care to receive gender-affirming treatment or permit/assist them in leaving Idaho to receive gender-affirming treatment. Violators could spend life in prison. Passage of this bill mostly followed party lines, moving to the Senate with a 55-13 approval vote. Only Republican Dr. Fred Wood—the only medical doctor in the Idaho Legislature—joined Idaho’s 12 Democrats in opposition to the bill.

The law the Idaho House wishes to alter originated in 2019 as an attempt to reduce the genital mutilation of young girls performed by certain faith groups. This legislation referenced exclusively “female genital mutilation of a child.” Rep. Bruce Skaug brought the transphobic amendments to this law veiled as a means to “protect” children. Skaug analogized life saving gender-affirming care with “sterilization” and “mutilation.” In a truly wild demonstration of his misunderstanding and his grotesque disregard for the rights of transgender, gender-diverse, and nonbinary youths, Skaug boiled down the worth of individuals to an “ability to procreate” as it is “a fundamental right that must be protected for these children.”

One of 29 other pieces of nationwide legislation aimed at preventing healthcare for transgender, gender-diverse, and nonbinary youths, Idaho’s bill differs from the others in that it criminalizes children leaving Idaho to find gender-affirming care as well as children within Idaho seeking gender-affirming care. Undisputedly, this bill clearly tells transgender, gender-diverse, and nonbinary persons that Idaho does not acknowledge their human rights. It is unlikely Idaho would ever pass a bill that prevents its residents from seeking medical care at an emergency room in another state or from seeking the aid of medical specialists for certain aggressive forms of cancer.

Idaho and Texas are not alone in their attack on human rights. The Idaho House’s passage of a bill impacting activity in and out of the state is just another example of state governments’ current authoritarian efforts to forcibly suppress human rights that exist in opposition to their agendas.

Recently, the Florida Legislature passed the “Don’t Say Gay” bill, a law that would forbid instruction on sexual orientation and gender identity in kindergarten through third grade. It would allow parents to sue school districts in violation of the law. An earlier draft of the bill required teachers to notify the parents of a student who came out as LGBTQ+. A Tennessee bill, if enacted, would ban gender affirming therapy for pre-pubescent minors and charge parents who allow their children to obtain such medical treatment with child abuse. The bill would also severely limit minors who have entered puberty from obtaining gender-affirming care. South Dakota became the first state in 2022 (and the 10th nationwide) to enact a law banning trans girls and trans women from competing in female sports teams.  

A proposed measure in Missouri would prohibit residents from obtaining out-of-state abortion services and would create a private right of action against anyone who tried or anyone who assisted someone in obtaining an abortion. Earlier this month, Congress failed to pass the Women’s Health Protection Act, while state lawmakers nationwide tighten abortion restrictions and the Justices of the Supreme Court likely circulate early drafts of Dobbs v. Jackson Women’s Health

These issues are not simply politicized points between two feuding parties; this sweep of recent legislation intends to criminalize humanity—a humanity that exists beyond specific legislators’ beliefs and ideals.

Doe v. Abbott: Texas’s Latest Affront to Constitutional Rights

On Wednesday, Mar. 2, 2022, District Judge Amy Clark Meachum issued a temporary order to stop an investigation of child abuse under Texas’s newest anti-trans directive. Judge Meachum’s order halted the investigation by the Texas Department of Family and Protective Services (DFPS) into the parents of a transgender teen for providing their child with gender-affirming care

In February of this year, Texas Attorney General Ken Paxton formally opined that performing or prescribing gender affirmation care on transgender, gender-diverse, and nonbinary youth constituted “child abuse” under Texas law. On February 22, Texas Governor Greg Abbott wrote to the DFPS directing it to investigate any youth’s gender-affirmation care as child abuse. The directive from Governor Abbott targeted both parents that supported, and medical providers that offered, gender-affirmation care. Governor Abbott advocated for “licensed professionals” and “members of the general public” to turn over parents to state authorities if it appeared that their child had received or is receiving gender-affirming care. The directive threatened criminal penalties not only for professionals that offer gender-affirming care, but also those professionals that fail to report “suspicions” of gender-affirming care to the state. In 2021, Texas legislators proposed 47 bills intended to restrict the rights of gender diverse, trans, and nonbinary youths. One of these bills, Senate Bill 1646, introduced by Senator Charles Perry aimed to criminalize gender-affirming care. The bill ultimately did not pass, but Governor Abbott’s directive and Ken Paxton’s opinion attempt to enforce it all the same. Though neither Paxton’s opinion nor Abbott’s directive is legally binding, the DFPS has already initiated multiple investigations against parents with children that receive gender-affirming care. 

The ACLU and Lambda Legal initiated this suit on behalf of the plaintiffs when the DFPS investigated one of its own employees, the parent of a trans teen. The Plaintiffs, two parents of  a trans youth—proceeding under Jane, John, and Mary Doe to protect anonymity and privacy— along with Dr. Megan Mooney, petitioned the court for a temporary restraining order, temporary injunction, permanent injunction, and request for declaratory relief against Governor of Texas Greg Abbott, Commissioner of the DFPS Jaime Masters, and the Texas Department of Family and Protective Services. 

Judge Meachum found that without an immediate restraint on the Defendants, the Plaintiffs “will suffer irreparable injury.” Jane Doe, the mother of the trans youth, was placed on administrative leave and is at risk of losing her job. All three Does are faced with deprivation of their constitutional rights, the loss of medically necessary care, and are subject to the stigma of an unfounded child abuse investigation. If found guilty of child abuse both parents could lose the ability to work with youths and volunteer within their community. Dr. Mooney faces potential suits from patients she cannot treat in accordance with professional standards under this directive. She also could lose her license for a failure to practice ethically and face criminal prosecution if she does not comply with the directive. Judge Meachum found that these grievances cannot be remedied; therefore, the Defendants had to be enjoined from taking further action under the directive against the named Plaintiffs. 

Next Friday, March 11, the Defendants have the opportunity to argue against issuing the temporary injunction. At issue at the hearing are the enforceability of the directive as well as the violations of the Plaintiffs’ constitutional rights. At the hearing, Judge Meachum will determine if a statewide injunction should enjoin the Defendants from investigating reports of gender-affirming care, prosecuting reports of gender-affirming care, and imposing requirements to report gender-affirming care. 

The American Medical Association, the American Academy of Pediatrics, and the American Psychological Association all support gender-affirming care. Gender-affirming care refers to healthcare services that affirm gender and/or treat gender dysphoria. The American Medical Association directly opposes state legislation that prohibits gender-affirmation care because the denial of gender-affirming care “can have tragic health consequences.” The American Academy of Pediatrics argues that bills aimed to restrict this care are entrenched in misinformation and present extreme danger to youths. Statistically, access to gender-affirming care leads to long-term mental health benefits for trans individuals. It lowers the risk of depression and reduces the risk of death by suicide. Overall, gender-affirming care can dramatically improve the mental and physical wellbeing of a trans, gender-diverse, or nonbinary youth. 

Texas is not the only state attacking the rights of gender-diverse, trans, and nonbinary people. Only three months into 2022, dozens of states are considering legislation that further discriminates against the LGBTQ+ community. Last year in Montana, Governor Greg Gianforte signed into law a number of anti-transgender bills. It is naive to ignore concerns that Montana’s next legislative session might mirror Texas’s multiple affronts to constitutional rights. 
Gender-affirming care is not child abuse. In many instances gender-affirming care can prove to be lifesaving. To criminalize the care that trans, gender-diverse, and nonbinary youths know is in their best interests not only heightens the violence and discrimination they already endure, it sends a horrifyingly clear message that their very existence is illegal.

Randall Menges v. Austin Knudson: Keeping Montana Out of the Pre-Lawrence Era

***This blog post discusses a sexual relationship between an 18-year-old employee of a youth foster program and two 16-year-old residents of the program. The power imbalance inherent in such a setting makes that relationship concerning for reasons not addressed in this blog post. The intent of this blog post is not to minimize those concerns; it is, rather, to report on the lingering and painful effects of anti-LGBTQ+ laws.

Last week the Lambda Legal Defense and Education Fund, an ACLU organization, filed an amicus brief in the Ninth Circuit Court of Appeals case, Randall Menges v. Austin Knudsen, No. 21-35370. The underlying district court’s order can be found here

In 1993, 18-year-old Randall Menges engaged in sexual acts with two 16-year-old boys while employed at a youth foster program in Idaho. He was subsequently convicted under Idaho’s Crimes Against Nature statute. Though Menges’s actions were considered consensual under both Montana and Idaho age-of-consent laws, he was nonetheless convicted because he engaged in anal and oral sex with two persons of the same sex. After seven years of incarceration in Idaho, Menges was released and required to register as a sex offender. He eventually relocated to Montana, where he was also required to register as a sex offender because the Montana Sexual or Violent Offender Registration Act’s definition of a “sexual offender” includes anyone convicted of a “law of another state” for which registration is required.

Idaho is one of few states that still requires persons convicted under pre-Lawrence v. Texas sodomy laws to register as sex offenders. In Lawrence, the Supreme Court held laws that criminalize certain intimate acts between two consenting adults of the same sex violate the Due Process Clause. Though Idaho’s Crimes Against Nature statute is still good law, it can no longer be applied in a way that violates the holding in Lawrence

The conviction has haunted Menges. Unable to secure steady housing and employment due to his sex offender status left him homeless in Montana. In December 2020, he sought to enjoin the Attorney General from requiring him to register, alleging that the sex offender registration requirement, as applied to him, violates the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and his right to privacy under the Montana Constitution. The U.S. District Court for the District of Montana, Missoula Division, granted Menges’s permanent injunction against the State.

Dismissing a number of procedural challenges, the district court in Menges considered the substance of each of Menges’s claims. At the outset the court noted that “the Due Process Clause and the rights of gay individuals share a tortured past,” but “the arc of the jurisprudence in this area bends in Menegs’s favor.” 

First, the court decided that Montana’s registration requirement deprives Menges of a liberty interest because the only reason he is forced to register as a sex offender is for engaging in conduct protected by Lawrence. Recognizing the ambiguity in Lawrence’s level of scrutiny, the court followed Ninth Circuit precedent and applied “heightened scrutiny.” It found that forcing Menges to register as a sex offender does not substantially further an important government interest. Therefore, the registration requirement violates Menges’s substantive due process rights under the Fourteenth Amendment.

Second, turning to Menges’s equal protection argument, the district court questioned the appropriateness of rational basis review, commenting, “if gender-based classifications need survive more than rational basis scrutiny then sexual orientation-based classifications would have to as well.” It nonetheless found that Montana’s registration requirement cannot survive even the lower rational basis review: “Montana has no rational basis for forcing Menges to register as a sexual offender on the basis of a 1994 Idaho conviction for engaging in oral or anal sex with a 16-year-old male when he was 18, but not forcing those to register as a sexual offender who were convicted in Idaho in 1994 at the age of 18 for engaging in vaginal sex with a 16-year-old female.” The requirement, therefore, violates Menges’s right to equal protection as well.

Finally, addressing the merits of Menges’s right to privacy argument, the court found that under the Montana Constitution “persons enjoy an actual expectation of privacy in their engagement in consensual sexual activity among persons of the same sex and society recognizes this expectation of privacy to be reasonable.” The court then applied the appropriate level of review, which is strict scrutiny. Responding to the State’s disappointing arguments, the court felt the need to state the obvious: “Having consensual intimate sexual contact with a person of the same sex does not render someone a public safety threat to the community”; “[i]t does not increase the risk that our State’s children or other vulnerable groups will be victimized”; and “law enforcement has no valid interest” in monitoring such persons. Though Montana’s sexual offender registration statutes serve a compelling government interest, “they are not narrowly tailored to serve those interests to the extent they pull Menges within their grasp.” The law is therefore unconstitutional as applied to Menges. 

The Montana Attorney General’s Office has subsequently appealed the district court’s decision to the Ninth Circuit. In its amicus brief, Lambda raises the same arguments accepted by the district court: requiring Menges to register as a sex offender violates Lawrence and consequently violates Menges’s fundamental liberty and right to equal protection. 

Litigants have challenged the constitutionality of sodomy laws since at least 1960. In the 1990s, the ACLU and Lambda launched a concerted effort to bring a case to the High Court. That case was, eventually, Lawrence. Nearly twenty years later, the Montana Attorney General’s Office seeks to undermine the Constitution and strong precedent by continuing to torment Menges.

The continued persecution of Menges based solely on his sexual orientation can be seen as part of a larger unprincipled and dubious legal movement to discredit and abrogate substantive due process rights, regardless of how well grounded these rights are in constitutional text, structure, and history. With the current Supreme Court of the United States accepting certiorari on arguments against presumed clear-cut constitutional protections, the Ninth Circuit has an important task ahead of it in reaffirming LGBTQ+ rights via the case of Menges. 

Non-compliant: Enforcing the ADA in Prisons for Persons with Mental Illness

The U.S. Bureau of Justice estimates 64% of people incarcerated in state and federal prisons suffer from mental illness either at the time of their initial incarceration or in the 12 months leading up to imprisonment. That means that at least 64% of people who enter prison implicate the scrutiny of their confinement conditions under the mental disability provisions of the Americans with Disabilities Act (ADA) and the Rehabilitation Act

The ADA and the Rehabilitation Act prohibit discrimination against people on the basis of their disabilities. Most courts interpret the ADA and the Rehabilitation Act to cover the same protections and enforce the same requirements. The specificity of the Rehabilitation Act is that it applies in particular to organizations that receive federal financial assistance. Under the ADA, a disability is any “physical or mental impairment that substantially limits one or more major life activities.” The ADA does not offer an exhaustive list of mental illnesses that constitute a “psychiatric disability” under the Act. However, it does suggest that the term “disability” be construed “in favor of broad coverage.” In determining protection, the ADA focuses on how the impairment affects a person’s “major life activities.” A person with a substantially limiting impairment is still considered disabled for the purposes of the ADA if they engage in factors meant to mitigate their symptoms, such as therapy or medication. Successful treatment does not prevent the application of the ADA or the Rehabilitation Act. Though the ADA does not provide an exhaustive list of disabilities that warrant protection, further interpretation and guidelines make it clear that the impact of a person’s impairment is much more significant than society’s acceptance of the impairment as a “mental illness.” For instance, society is more resistant to acknowledging substance use as a mental illness compared to generalized anxiety disorder, but the ADA protects both to the same extent. 

Using this understanding of mental disabilities, current methods of incarceration violate the ADA and the Rehabilitation Act because most methods of incarceration have a disparate negative effect on persons with mental illness compared to persons without.

Prisons are not equipped to adequately treat persons with mental illnesses. Once incarcerated, persons with mental illnesses struggle to conform to the structure of prisons. This struggle leads to abuse from guards and other inmates and extreme declines in mental health. In prison, persons with mental illness are exposed to conditions that exacerbate their symptoms, expound on their symptoms, and consequently place them at a higher risk of recidivism. Due to the manifestation of their symptoms, persons with severe mental illness are more likely to face further punishment such as solitary confinement and are less likely to be released early compared to persons without mental illnesses. The structure of prisons and current correctional practices inherently disadvantage persons with mental illnesses compared to those without. 

How might the ADA and the Rehabilitation Act be used to combat current methods of incarceration as applied to persons with mental illnesses? The Rehabilitation Act applies to federal agencies, such as the Bureau of Prisons (BOP), and Title II of the ADA applies to state facilities, regardless of whether they receive federal funding. Title II abrogates state sovereign immunity for conduct that violates the Fourteenth Amendment. To bring a lawsuit under the ADA or Rehabilitation Act, a person who is incarcerated must prove three things: (1) they are disabled within the meaning of the ADA; (2) they qualify to receive certain services or benefits, or participate in a program or activity of a public entity; and (3) they are excluded from, not permitted to benefit from, or have been subjected to discrimination in the program because of their disability. The Rehabilitation Act requires the showing of a fourth element: that the facility receives federal funding

Plaintiffs have used these Acts to challenge a variety of prison conditions and actions. Most often persons incarcerated sue in response to their direct exclusion from prison programs or lack of accommodations. Plaintiffs have also sued for lack of medical care, often incorporating Eighth Amendment claims in these lawsuits. But some courts have found that the ADA and Rehabilitation Act apply to other prison conditions as well, such as solitary confinement and placement in an infirmary unit. Though somewhat successful in the above applications, courts have limited the efficacy of these laws through a number of exceptions to discrimination, some of them framed in overly broad terms, such as any policy that serves “legitimate penological interests.” Incarceration centers continue to fall short and persons with mental illnesses continue to suffer discrimination on the basis of their mental disability. In the future, these discrimination claims might be bolstered by strong conjunctive use of the Fourteenth and Eighth Amendments. Specific to Montana, persons incarcerated may try to sue in protest of prison conditions through the largely underutilized Dignity Clause. 

Veiled by half-hearted claims to rehabilitate and reduce recidivism rates, the United States prison system overwhelmingly fails to meet any penological goal other than punishment. Its design ensures that persons incarcerated, particularly those struggling with mental illness, come out of their sentence without any tools to succeed. It is a system designed to perpetuate intergenerational cycles of violence and incarceration. It doesn’t work, and it needs change. Other prison models, premised on human dignity, are available to us and prove to be more effective. An overhaul of the current prison system in favor of a more productive model will take significant efforts, one of these efforts may be through the ADA and Rehabilitation Act. 

Nearly two-thirds of people incarcerated are held in a system structured to discriminate against their disabilities. The federal government enacted measures to prevent this discrimination—it’s time to enforce these protections. 

L. Moose