Abortion Rights: “ash heap of history” or Surviving the Smoke?

One day after Donald Trump officially became the 45th President of the United States, millions of people across the world marched in solidarity with the 500,000 who protested in the nation’s capital. The Women’s March on Washington, brought those of different genders, ethnicities, religions, and circumstance to send, what Planned Parenthood Federation of America President, Cecile Richards, called “a strong message to the incoming administration that millions of people across this country are prepared to fight attacks on reproductive healthcare.”

“the ash heap of history.”

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While the Inauguration has had the effect of stoking the fire for a resistance, one of Donald Trump’s first acts as President was aimed at crippling the very right the Women’s March on Washington aimed to protect. In an Executive Order, the 45th President moved to revive a federal ban eliminating U.S. funding for international health organizations who counsel women on reproductive health, including abortion. With Republicans now controlling the Executive and Legislative Branches of the United States Government, access to legal abortion faces the threat of being placed on, according to Vice President Mike Pence, “the ash heap of history.”

On January 31, 2017, President Trump announced 10th Circuit Court of Appeals Judge, Neil Gorsuch, as his Supreme Court nominee. Following the death of Supreme Court Justice, Antonin Scalia, on February 13, 2016, the highest court has not been complete. Senate Republicans have since refused to hold a hearing for President Obama’s nominee. This nominee appointment gave Trump an enormous role in shaping the composition of the Supreme Court. Judge Gorsuch was a traditional pick many Republicans support, however, the main question is whether Gorsuch’s stance on reproductive health care will bring a negative spark, marking the promised destruction of modern day abortion rights.

The Appointments Clause of Article II vests the power to appoint Supreme Court Justices in the Executive Branch and the President. Article II also subjects the President’s nominee to a confirmation by the United States Senate. Following the Senate’s refusal to hold a hearing for President Obama’s nominee, House Speaker, Paul Ryan, said, “Under our Constitution, the president has every right to make this nomination, and the Senate has every right not to confirm a nominee.”

The Supreme Court Justices act as legal protectors of the United States Constitution. In the landmark1803 case of Marbury v. Madison, the Court declared it “emphatically the province and duty of the judicial department to say what the law is.” The Constitution allows justices to “hold their Offices during good Behaviour…” which is interpreted to mean until death, retirement or impeachment for bad “Behaviour.” Although the two other branches of government limit the power of the Supreme Court, a potentially unlimited term gives a Justice power in shaping the laws and future of America.

One social issue the Supreme Court has protected is a woman’s right to a legal abortion. In 1973, the Court expressly declared, in Roe v. Wade, access to legal abortion is safeguarded through the due process clause of the Fourteenth Amendment, giving emphasis to the concept of “substantive due process.” Both the Fifth and Fourteenth Amendments to the Constitution of the United States emphasize no person shall be deprived of “life, liberty, and property, without due process of law.” This concept, analyzed in Roe, examines the question of whether the government’s deprivation of a woman’s “liberty” was justified by a necessary purpose. In a 7-2 decision, the Court found a woman’s right to choose was shielded as a fundamental right under the Fourteenth Amendment through this idea of “liberty.” This gave women autonomy over the pregnancy during the first trimester, preventing any state interference until the second and third trimesters.

The Court’s standard to defend a woman’s right to an abortion, has been further restricted in recent years. Planned Parenthood v. Casey, in 1992, established a State’s ability to make laws restricting pre-viability abortions. The new test allowed restrictions to be placed on first trimester abortions, as long as the restrictions do not place an “undue burden” on women seeking the abortion. The Court’s “undue burden test” generated doubt on whether a woman’s right to an abortion was a fundamental right, which should be held to the highest level of scrutiny. These questions were answered on June 27, 2016 with the Supreme Court’s opinion in Whole Woman’s Health v. Hellerstedt. The 5-3 majority opinion upheld the “undue burden” standard and affirmed abortion is a fundamental right.

The possibility of further restrictions of abortion rights smolder on the horizon, but currently remain at bay.  After Whole Woman’s Health, a Trump appointed nominee will likely swing the Court toward a 5-4 majority in favor of upholding current abortion law. Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan voted to reaffirm Casey’s “undue burden” standard safeguarding a woman’s fundamental right to an abortion. Thomas, Alito, and Roberts were the three Justices to dissent to the opinion. If all the current justices were to remain on the bench until after the next president is elected, the potential threat to abortion rights should remain dormant even if Justice Gorsuch were to side with the dissent.

Specifically, the confirmation of Trump’s nominee creates a right leaning court with moderate conservative Justice, Anthony Kennedy, remaining the swing vote on the issue of abortion. While Kennedy indicated an intention to protect the “undue burden test” by siding with the majority in Whole Woman’s Health, Kennedy’s opinion in a 2007 abortion case suggests personal conflict on the issue. In Gonzales v. Carhart, the Court upheld a congressional ban on “partial-birth abortion.” Kennedy’s opinion suggests he was bothered by the lack of dignity in this procedure. In upholding the ban, Carhart affirmed States have some responsibility toward unborn children and in these rare instances the rights of the unborn overshadow the life of the mother. Kennedy also referenced his belief women may regret their choice stating, “[w]hile we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

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“Trump could establish a relatively young 7-2 conservative court.”

Justice Gorsuch is the first Trump nominee appointed, but with three of the Court’s senior members continuing to age, there remains uncertainty whether he will be his last. If Justice Ginsburg (83), Justice Breyer (78), and Justice Kennedy (80) decide to step down or their health were to fail, Trump could establish a relatively young 7-2 conservative court. In this scenario, the safety net protecting abortion rights is likely to become engulfed in flames.  Especially after Trump publically pledged to appoint justices who would overturn Roe v. Wade and stated “some form of punishment” is necessary for women who have an abortion.

Donald Trump’s appointment of Justice Gorsuch, could also mean a shift in majority regarding reproductive rights. Justice Gorsuch has an impressive legal resume, clerking for two Supreme Court justices, White and Kennedy. A self-described Originalist, Gorsuch is known in the legal profession for his textual analysis in his opinions. Gorsuch told law students at Case Western Reserve University School of Law, judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” In the controversial Burwell v. Hobby Lobby case in 2013, Gorsuch penned a concurring opinion stating a mandate for employers to provide contraception coverage under the Affordable Care Act was a violation of the rights to religious freedom of Christian employers and religious organizations.  Gorsuch has not been required to give an opinion on Roe v. Wade, therefore his stance on abortion is largely unknown.

“Our constitution does not begin with ‘I, the President.’ It begins with, ‘We, the People.’”

Feminist leader, Gloria Steinem, pointed out, “Our constitution does not begin with ‘I, the President.’ It begins with, ‘We, the People.’” Year after year, it seems that “we, the people” favor a growing trend toward “pro-choice” abortion rights. For example, in a 2016 Pew Research Center poll, 56% of people stated abortion should be legal in all or most cases, while only 41% said it should be illegal. This majority increased from a 2015 Gallup poll with only 50% identifying as “pro-choice” and 44% identifying as “pro-life.” As our country moves forward with a new conservative President and Legislature, the issue to keep an eye on is the threat to a woman’s fundamental right to choose. Only time will tell how imminent this threat really is.

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Image by: Lorie Shaull

Celebrities, Art, and the Law: When Celebrities Get What They Want and When They Don’t

When Celebrities Get What They Want . . .

Have you seen Kanye West’s latest sculpture?  If not, it’s from his new music video entitled Famous and is now on exhibition at the Los Angeles’ Blum & Poe gallery.  The sculpture, created from wax, is the realistic, nude likeness of: George W. Bush, Anna Wintour, Donald Trump, Rihanna, Chris Brown, Taylor Swift, Kanye West, Kim Kardashian, Ray J, Amber Rose, Caitlyn Jenner, and Bill Cosby.  Understandably, after the video was released on June 24, 2016 it caused quite the controversy.  Kanye even tweeted, “Can somebody sue me already #i’llwait.”  But while it seems unlikely that anyone will sue, the question posed here is—if they did, could they win?  The answer: probably not.

When a celebrity attempts to control the exploitation of their name, likeness, and fame, this falls under a claim of misappropriation.  Some states have adopted the action under a separate common law remedy, however, most have developed it as an offshoot of the common law right of privacy.  Restatement of the Law, Second, Torts § 652(c) (“one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”).  Under Cal. Civ. Code § 3344, the person’s likeness has to be pretty detailed and “readily identifiable.”  The likeness must also be used for commercial purposes.

For example, Vanna White lost a claim of misappropriation under the California statute, but won under the common law when a Samsung commercial contained a robot with her likeness.  Thus, a claim for misappropriation under the common law is much broader than in California.  For instance, “likeness” could encompass not only a picture of you, but also other items that would make one think of you.  And, this “likeness” could be used for both commercial purposes or for non-commercial purposes (such as impersonating someone to induce others to disclose confidential information).

But, when the value of a work of art comes principally from some source other than the fame of the celebrity, this is not misappropriation.  In the iconic case Winter v. D.C. Comics, the Winter Brothers filed suit against DC Comics for misappropriation of their likeness.  In the comic series, the “Autumn Brothers,” half-worm-half-humans are killed by an anti-hero.  However, the court found that the value of the work contained sufficiently transformative elements to warrant First Amendment protection.  The “inquiry is whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized or whether the depiction or imitation of the celebrity is in sum and substance of the work in question.”

In other words, the question becomes whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.  Here, Kanye’s sculpture has enough transformative elements to be protected under the First Amendment.  While it is clear that the nude figures are indeed the celebrities identified above, Kanye is using them to personify “fame” and what it means to be “famous.”    And, the idea of a boudoir including all of the nude celebrities is, indeed, fanciful.

And When They Don’t . . .

In case you don’t remember, “Left Shark” made its appearance at Super Bowl XLIX.  But few thought about who owned the rights to the costume of this infamous back-up dancer.  Left Shark was one of Katy Perry’s costumed half-time dancers, who became an internet sensation for dancing slightly off beat.  However, after Perry’s legal team sent Etsy-based 3D-printer, Fernando Sosa, a cease and desist letter, the question arose—can Katy Perry copyright Left Shark?  The answer: most likely no.

The extent that clothing is copyrightable is a question that lawyers as well as judges still grapple with today.  Article I, Section 8, Clause 8 of the Constitution states that Congress has the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  Therefore, cultivating creativity is the general concept behind copyright law. Copyright law exists to balance the creator’s entitlement to compensation, and the public’s desire to benefit from creations.  This balance means giving the creators enough rights to have an incentive to create, and the public the benefits of advancing technology and culture.

Courts have concluded that clothing is non-copyrightable because it serves a utilitarian purpose.  17 U.S.C. § 101 defines “useful article” as one having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.  An article that is normally a part of a useful article is also considered a useful article.  For example, even Halloween costumes are seen as utilitarian and thus, in the eyes of the law, are not copyrightable.

While this may seem strange in light of fashion weeks filled with grand designs from Chanel to Valentino, there are, understandably, exceptions to § 101’s general rule.  In the quintessential case Brandir International, Inc. v. Cascade Pacific Lumber Co., the court held that “if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements.”  Contrariwise, when design elements are identifiable because they reflect the designer’s “artistic judgment,” they may be seen independently of functional influences, and thus conceptual separability exists.  When features can be identified separately and are capable of existing independently from the utilitarian aspects of clothing, those items may be protected by copyright.

Courts often rely on the Denicola Test, which highlights whether the designer was significantly influenced by functional considerations.  In writing for Brandir, Judge Oakes stated, “copyrightability ultimately should depend on the extent to which the work reflects artistic expression uninhibited by functional considerations.”  But, what constitutes “artistic expression” is disputed.  For example, in Kieselstein-Cord v. Accessories by Pearl Inc., the central issue was whether a designer belt buckle was copyrightable.  Under the Denicola Test, the court had to decide whether a designer belt buckle had a visual function that was not tied directly to its utilitarian function of holding a belt together. The court held that the buckles were “sculptured designs cast in precious metals – decorative in nature and used as jewelry is, principally for ornamentation.”  Therefore, the buckles were separate enough to be protected by copyright, although belts in general receive no such protection.  Continue reading “Celebrities, Art, and the Law: When Celebrities Get What They Want and When They Don’t”

Trump’s Immigration Policy: Borderline Unconstitutional

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The 2016 Presidential primaries are well on their way, and the issue of immigration reform has been a contentious one, to say the least. This is especially true on the Republican side, where leading candidate Donald Trump has advocated extreme measures to reform immigration policy, such as building a wall between the U.S. and Mexican Border, and temporarily banning Muslim immigrants from entering the U.S.

However, Trump’s other plans for immigration reform, which call for mass deportations and the abolishment of birthright citizenship, have dominated discussions. Besides the fact that these two policies are criticized for being impractical and prejudicial, implementing either policy would most likely also be unconstitutional.

As of the 2013, there are currently over 11 million undocumented immigrants in the United States. In an interview with CNN’s Dana Bash, Trump said that if he were elected President, he would deport all undocumented immigrants, and then allow the “really good people” to re-enter the country through an expedited process. However, those “really good people” would not be recognized as citizens.

Mass deportation of all undocumented immigrants would take about 20 years and cost an estimated $500 billion. This includes the cost of all the police, judges, lawyers, enforcement agencies and transportation needed to find and deport 11 million people, but it does not include the cost of bringing back the “really good people.”

However, the biggest question arising from Trump’s plan is not the costs associated with it, but rather the constitutionality of the plan.

There is a basic constitutional understanding that the United States has broad power to protect its borders, to decide who may enter its territory, what people who enter can do while inside its borders, and how long they may be allowed to stay.

Accordingly, the Trump Plan raises three interconnected issues: 1) which branch (if any) would have the authority to order the deportation of 11 million people; 2) does the deportation of 11 million people violate the Due Process Clause; and 3) if the plan splits up families with American-born children, would the American-born children be deported with their parents? 

 

Which Branch Can Order the Deportation of 11 Million People?

Congress is the legislative branch and decides most issues by passing laws. The executive branch, led by the President, has very wide discretion in deciding how to enforce those laws. The judicial branch, consisting of federal district courts and ultimately the U.S. Supreme Court (the highest court in the land), can issue rulings that decide disputes, such as the question of which branch is ultimately responsible for immigration policy.

In 2014, President Obama issued an executive order that overhauled the nation’s deportation policy. The executive order lifted the threat of deportation of more than 4 million illegal immigrants and was directed at people with no criminal record, whose children were U.S. citizens. However, lower courts blocked President Obama’s executive action after twenty-six Republican-governed states sued to stop it, claiming he exceeded his presidential powers under the U.S. Constitution.

Trump has already publically stated that if he became President, he would create a “deportation force” that would go door-to-door looking for undocumented immigrants. Trump has also laid out an immigration plan that calls for a nationwide system to verify workers’ legal status (tripling the number of immigration and customs enforcement agents) and implements a tracking system to identify people who overstay their visas.

Donald Trump has yet to specify how he plans to execute his immigration plan. However, one thing is for sure: if he plans on utilizing an executive action to deport 11 million people, he will face similar push-back from those who believe he is exceeding his presidential power.

 

The Due Process Clause Applies to Illegal Immigrants and Requires a Hearing and Appeal

Although the federal government has broad power in protecting the nation’s borders, neither the legislative or executive branch may violate the due process clause when deporting individuals – even if those individuals are undocumented.

The Fifth and Fourteenth Amendments to the U.S. Constitution each contain a due process clause. The due process clause states that federal or state governments may not take an individual’s “life, liberty, or property” without due process of law.

While undocumented immigrants do not enjoy all of the rights granted to U.S. citizens by the Constitution – for example the right to vote – courts have ruled that, while they are within the borders of the United States, undocumented immigrants are granted the same fundamental constitutional rights granted to all Americans. In 2001, the U.S. Supreme Court ruled in Zadvydas v. Davis that the due process clause of the 14th Amendment applies to all undocumented immigrants in the United States whose presence is “unlawful, involuntary or transitory.” This means that each and every one of the over 11 million undocumented immigrants Trump wants to deport has the right to a hearing (and possibly an appeal) before they are ever deported.

Furthermore, even if Trump can identify every undocumented immigrant in this country, it would cost taxpayers millions of dollars to pay for all of the legal fees necessary to properly give every undocumented immigrant a fair trial. Moreover, attempting to deport large quantities of undocumented immigrants, without due process, would not only be blatantly unconstitutional – it would raise countless humanitarian issues as well.

 

Issue of Deportation of American-Born Children Along with Their Parents

Donald Trump has repeatedly vowed to end President Obama’s deportation-relief policies for parents of American-born children. “We’re going to keep families together, but they have to go,” said Trump. This effectively means that Trump is advocating for the abolishment of birthright citizenship and the deportation of children who are U.S. citizens.

“Birthright citizenship” is a principle stemming from the 14th Amendment of the U.S. Constitution; it refers to the idea that children of undocumented immigrants, born within the geographical limits of the U.S., are automatically entitled to American citizenship.

In other words: if a child is born in the United States, they are an American citizen, regardless of whether or not their parents are American citizens.

However, some have suggested that the 14th Amendment’s phrase, “and subject to the jurisdiction thereof,” is open to re-interpretation. State lawmakers across the country have even gone as far as to present legislation that claims the U.S. does not have jurisdiction over U.S.-born children of undocumented immigrants.

These attempts lack legal foundation. The U.S. Supreme Court decidedly addressed this issue in the landmark decision of U.S. v. Wong Kim Ark. In Ark, the court held that a baby born in San Francisco, California to Chinese parents (who at the time were not permitted to naturalize as U.S. citizens) became a U.S. citizen at the time of his birth.

That case unambiguously defined the 14th amendment as it relates to citizenship, and it has been settled law for over 100 years. Moreover, the Supreme Court has since affirmed the understanding that undocumented immigrants are in fact “subject to the jurisdiction” of the United States under the 14th Amendment.

Therefore, if Trump wants to take away a firmly established right of citizenship, he would have to push congress to amend the Constitution first.

 

The federal government’s policy on immigration has risen to the top of the political and constitutional agenda, and over the next year, the nation will watch it develop. Donald Trump’s plans for immigration reform have been revered by some for being refreshingly honest, and criticized by others for being prejudicial and impractical.

Only time will tell whether Trump will be elected to represent the Republican Party in the 2016 General Election. And only time will tell whether his plans – some of which are currently unconstitutional – will be ever be executed.