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(Source:  Freedomtomarry.org and Mic via Vox.com)

(Source: Freedom to Marry and Mic via Vox)

Color the state of Florida red in the maps above, as a state court judge in Miami-Dade County today allowed gay and lesbian couples to marry there.  The judge’s action followed an August 21 federal court ruling striking down the state’s same-sex marriage ban, a decision which the U.S. Supreme Court subsequently refused to stay.

That makes 36 states now where same-sex marriage is legal, including North Carolina, which followed suit after the 4th U.S. Circuit Court of Appeals in Richmond overturned Virginia’s marriage ban in July 2014 — a decision that was binding here and in all other states in the circuit.

Another nine states have court rulings pending appeal.

Against that backdrop, the U.S. Supreme Court will consider petitions for review from five states — Tennessee, Louisiana, Ohio, Michigan, and Kentucky — at conference on January 9, and it is likely that the court will take at least one, given that conflicting decisions have now been issued by federal courts of appeal.

Read the Vox update on where each state stands here, and read more from Freedom to Marry on the cases pending before the Supreme Court here.

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In a unanimous decision released today, the 4th U.S. Circuit Court of Appeals has blocked enforcement of the state’s pre-abortion ultrasound law, finding that it violates the First Amendment rights of physicians who provide abortions.

Here’s how U.S. District Judge Catherine Eagles described the law in her lower court decision overturning it:

The patient must lie on an examination table where she either (i) exposes the lower portion of her abdomen, or (ii) is naked from the waist down, covered only by a drape. Depending on the stage of pregnancy, the provider (i) inserts an ultrasound probe into the patient’s vagina, or (ii) places an ultrasound probe on her abdomen.

The provider must display the images produced from the ultrasound “so that the pregnant woman may view them.” Providers must then give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

Several North Carolina doctors and other health care providers sued state officials in federal court in Greensboro in late September 2011, contending that the ultrasound requirements intruded upon the patient-physician relationship and amounted to compelled speech in violation of the First Amendment right to free speech.

The doctors argued that the ultrasound provision required them to convey the state’s message of discouraging abortion and encouraging childbirth, which they would not have delivered absent a patient’s consent.

In response, state officials argued that in requiring doctors to perform the ultrasound and convey accurate and truthful information about the fetus, they were well within the confines of permissible state regulation of the medical profession.

Judge Eagles temporarily blocked the ultrasound provision of the Act and then in January of this year permanently struck it down.

Applying principles underlying the First Amendment right to free speech, Eagles found that to the extent the Act required physicians to deliver information in support of the state’s philosophic and social position, it was impermissible content-based regulation.

Alternatively, the judge found that if the provision was intended to advance a substantial state interest in regulating health care, it did not pass muster, especially given that the patient did not have to listen and could take steps to avoid hearing the message.

The three judges on the Fourth Circuit agreed with Eagles.

Writing for the court, U.S. Circuit Judge J. Harvie Wilkinson III said:

Though the State would have us view this provision as simply a reasonable regulation of the medical profession, these requirements look nothing like traditional informed consent. . . .  As such, they impose an extraordinary burden on expressive rights. The three elements discussed so far — requiring the physician to speak to a patient who is not listening, rendering the physician the mouthpiece of the state’s message, and omitting a therapeutic privilege to protect the health of the patient — markedly depart from standard medical practice.

Other aspects of the Requirement are equally unusual. As described above, informed consent frequently consists of a fully-clothed conversation between the patient and physician, often in the physician’s office. . . This provision, however, finds the patient half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina. Informed consent has not generally been thought to require a patient to view images from his or her own body, much less in a setting in which personal judgment may be altered or impaired. Yet this provision requires that she do so or “avert[] her eyes.”  Rather than engaging in a conversation calculated to inform, the physician must continue talking regardless of whether the patient is listening.The information is provided irrespective of the needs or wants of the patient, in direct contravention of medical ethics and the principle of patient autonomy. And it is intended to convey not the risks and benefits of the medical procedure to the patient’s own health, but rather the full weight of the state’s moral condemnation. Though the state is plainly free to express such a preference for childbirth to women, it is not the function of informed consent to require a physician to deliver the state’s preference in a setting this fraught with stress and anxiety.

Read more on the case here.

Read the full decision here.

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It took close to a year from the date of argument,  but as expected by many the state Supreme Court today handed down its decision upholding the 2011 redistricting plan.

The justices voted along party lines in the 4-2 opinion in Dickson v. Rucho, with Justice Robert Edmunds writing the opinion for the majority.

Justices Cheri Beasley and Robin Hudson joined in dissent, holding that the case should go back to the three-judge panel that initially decided the case.

Justice Robert Hunter did not participate in the case.

The high court had not handed down any written decisions since August — with 37 cases pending for a ruling as of yesterday — but today caught up a bit with 22 opinions.

In Dickson, the majority found that the General Assembly was justified in using race to redraw the state’s congressional and legislative voting districts after the 2010 census, to the extent necessary to avoid liability under the Voting Rights Act.  With respect to the 26 districts drawn for that purpose though, the state was obliged to narrowly tailor the redistricting. Read More

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XmasLightsMaybe it’s the time of year, but it seems that there’s been more than a handful of reports these past few weeks about judges who are taking critical look at how court decisions are impacting their communities.

There’s this story out of South Carolina, where yesterday Judge Carmen Tevis Mullen vacated the 1944 conviction of a black 14-year-old boy charged with allegedly murdering two white girls.

As Reuters reports, George Stinney Jr. was convicted by an all-white jury after a one-day trial and a 10-minute jury deliberation and died soon after in the electric chair.  He was the youngest person executed in the United States in the past century.

Finding that Stinney did not receive a fair trial, Judge Mullen wrote:

From time to time we are called to look back to examine our still-recent history and correct injustice where possible. I can think of no greater injustice than a violation of one’s constitutional rights, which has been proven to me in this case by a preponderance of the evidence standard.

Then there’s this — one judge’s regrets about harsh sentences he was forced to hand down under federal sentencing guidelines.

Recalling how those guidelines came about, U.S. District Judge John Gleeson in Brooklyn spoke to NPR this week as part of that organization’s ongoing look at their impact.

As NPR describes its efforts:

We talked with judges who expressed tearful misgivings about sending people away for the rest of their lives for crimes that involved no violence and a modest amount of drugs. We found a newly released inmate trying to reacquaint herself with her community in the Florida panhandle and rebuild ties with her grieving children after 17 years away from home. And we went inside a medium-security prison in New Jersey to find a lifer who says he deserves another chance. These people acknowledge that they broke the law and accept the need for punishment. But they say their decades-long incarcerations cast a shadow that lingers over their families, damage that far outweighs the wrongs they did to put them in prison.

Here’s what Gleeson had to say about the underpinnings of the guidelines:

This was a different time in our history. Crime rates were way up, there was a lot of violence that was perceived to be associated with crack at the time. People in Congress meant well. I don’t mean to suggest otherwise. But it just turns out that policy is wrong. It was wrong at the time.

 

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The justices of the U.S. Supreme Court handed their counterparts in North Carolina a victory this week, affirming the state Supreme Court’s ruling in State v. Heien and holding that that a traffic stop is justified if based upon an officer’s reasonable but mistaken belief that a violation of law has occurred.

Heien, you may recall, involved an officer’s stop of an Hispanic man driving a vehicle with a broken tail light, on the ostensible but mistaken belief that having only one tail light working was against the law in North Carolina.  A vehicle search followed, then an arrest and ultimately a conviction for cocaine trafficking.

The Supreme Court’s decision on Monday came down with barely a nod to the current climate of racial unrest and minority suspicion of policing in the community — except for the lone dissent by Justice Sonia Sostmayor — and added yet another layer of ambiguity to the bounds of reasonable policing at a time when just the opposite is needed, as Slate’s Dahlia Lithwick aptly points out in this essay.

Says Lithwick:

Why does any of this matter? Because Vasquez wasn’t stopped by the cops for having a broken tail light. He was trailed by an officer because he was driving while looking “stiff and nervous” and for “gripping the steering wheel at a 10 and 2 position, looking straight ahead.” In other words, he was a Hispanic man driving a beat-up car in North Carolina, and the officer followed him for doing what the rest of us do every single day: driving while holding on to a steering wheel and looking forward.

Justice Sotomayor tried to point this out during argument, but to no avail.  Lithwick adds:

You would think that we had not just lived through a summer in which we were painfully reminded of the realities of militarized police, civil asset forfeiture, racial profiling, relentless police harassment of citizens, and frivolous stops for trivial infractions. These infractions can lead to mounting debts which in many minority communities turn the criminal justice system into something like a series of debtors’ prisons. The discussion in Heien never reflects the fact that a long, sordid history of pretextual and harassing traffic stops have fostered fear and anxiety in minority communities. As President Obama put it, there is a “simmering distrust that exists between too many police departments and too many communities of color.” But from the perspective of the high court, it’s as if the summer of 2014 was happening in an alternate universe.