Tuesday, June 30, 2015

Rebuffing locals—and their local knowledge—in northern NY manhunt

The New York Times reports today on the disputes between different law enforcement agencies—and scales of government—in the manhunt for two men who escaped from the Clinton Correctional Facility more than three weeks ago.  The story told by Benjamin Mueller represents many things, among htem urban hubris and a power-struggle between scales of government.  Mueller reports, for example, that Governor Cuomo ordered "a large cadre of non-state law enforcement personnel"—an apparent reference to local law enforcement personnel—out of the command center early on in the manhunt.
A friend of Clinton County sheriff David Favro relates the story thusly:  
Sheriff Favro’s frustration was compounded when Mr. Cuomo arrived at the command center and told him and all the other non-state employees to leave, said a close friend of the sheriff’s, David Andrews, the director of the local radio station WIRY. Mr. Andrews said Mr. Favro was angered at being notified of the escape so late, and was astonished that Mr. Cuomo had asked him to leave. 
“At first they were asked to leave, and he said, ‘But I’m the sheriff,’ ” Mr. Andrews recalled. “Then they were told they had to leave. He was furious and went home.”
in the swamps and forests where the inmates hid, investigators sometimes spurned the assistance of local officials and hunters.
Another local official's anecdote tells of
state and federal officials gathered around the back of a pickup truck, scrutinizing a map whose scale he said was too small to show the uneven geography.
That official commented that the "command and control did not seem in my opinion to be real firm."  

Governor Cuomo's office issued a statement on the matter:
It is customary for state officials to do confidential briefings to relay sensitive information to other state officials during the initial stages of any investigation.  However, the State Police and other state agencies have coordinated extensively with local and federal law enforcement authorities.
This reminds me of some of the power struggles b/w local and federal officials in my own home county.  Read more here.   

Oklahoma S. Ct. will allow private suits for earthquake damage linked to fracking

Here's the lede from Richard Oppel Jr.'s story in the New York Times:
The Oklahoma Supreme Court ruled Tuesday that homeowners who have sustained injuries or property damage from rampant earthquakes they say are caused by oil and gas operations can sue for damages in state trial courts, rejecting efforts by the industry to block such lawsuits from being decided by juries and judges. 
The case has been closely watched both by the energy industry and by fracking opponents across the United States, and the 7-to-0 ruling opens the door for homeowners in a state racked by earthquakes to pursue oil and gas companies for temblor-related damage.
See more coverage of similar issues here and here.  

Monday, June 22, 2015

NYT stands up for poor and rural women

The New York Times published an editorial this morning titled, "Republicans Take Aim at Poor Women."  The editorial addresses the need for good reproductive health care for women--especially poor women and rural women--and how Republican concerns to curb abortion lead to bad political decisions that undermine funding for badly needed programs to support poor women's health and well being.  It begins by pointing out the irony in the current political landscape:  
One would imagine that congressional Republicans, almost all of whom are on record as adamantly opposing abortion, would be eager to fund programs that help reduce the number of unwanted pregnancies.
 * * *
And yet since they took over the House in 2011, Republicans have been trying to obliterate the highly effective federal family-planning program known as Title X, which gives millions of lower-income and rural women access to contraception, counseling, lifesaving cancer screenings, and treatment for sexually transmitted diseases.  
The Times editorial board notes that a House subcommittee on Labor, Health and Human Services submitted a bill last week that would eliminate all Title X funding, about $300 million.  Among other things, the bill would slash funding for sex education by up to 90%.  You see, Title X is caught up in the abortion wars, the NYT explains, though needlessly so.  Title X grants get used to prevent unwanted pregnancies--more than a million in 2012--"which translates to about 363,000 abortions avoided."

Republicans, whose zeal to cut funding for essential health services seems to know no end--especially when the poor are the beneficiaries of those programs--do not seem to grasp that irony.  The NYT editorial board concludes:
This latest bill aims squarely at one of the nation’s most vulnerable groups — poorer women, many of whom live in rural areas with little access to health care of any kind.

Saturday, June 20, 2015

Iowa Supreme Court strikes law prohibiting medication abortion by telemedicine

The Iowa Supreme Court struck down a rule on Friday that would have prohibited doctors from using telemedicine to dispense abortion-inducing pills to patients in remote clinics around the state, saying the ban placed an “undue burden” on a woman’s constitutional right to an abortion. 
Planned Parenthood clinics in Iowa have been using telemedicine to provide medication-induced, nonsurgical abortions since 2008, seeing it as a way to expand access to women living in the state’s many rural areas. Under the system, the first in the nation, doctors in Des Moines, Iowa City and Ames have used videoconferencing to provide the service to more than 7,000 patients in seven clinics.
Meanwhile, Goodenough reports, sixteen states require physicians to prescribe in person the drugs involved in medication abortions.  Arkansas and Idaho will join those sixteen later this year.  For now, only Iowa and--to a lesser degree--Minnesota permit physicians to use video in prescribing such drugs.

Contrast this with the depressing news out of Texas, thanks to the Fifth Circuit Court of Appeals.  Read more here, here and here.

Thursday, June 11, 2015

Technology (time) won't (always) trump (rural) space

I argued that rural spatiality limits law and the state in my 2014 piece, The Rural Lawscape:  Space Tames Law Tames Space.  Now we have a great example of it in the news:  the escape from the high-security Clinton Correctional Facility in upstate New York, near the Canadian border.  Here's an excerpt from a piece on the manhunt, by North Country Public Radio:
Take a look at an incredibly detailed topographic map of Clinton and Essex counties, where the search is underway. It won't take long to realize just how difficult that search is. Incredibly remote communities scattered among mountain valleys, huge expanses of empty forest, old farm meadows and swampland. 
"We're covering a very large expansive area," says Capt. John Tibbets, one of the men leading the search near the town of Willsboro. "It's lot of low-lying brush. There's a lot of wooded areas. There's a lot of abandoned outbuildings." 
Along the dirt road, through the foothills of the Adirondack Mountains, men and women in body armor move almost shoulder to shoulder across a field. A helicopter prowls overhead.
* * * 
[F]ugitives could be hiding amid the brush just feet away without ever being seen. The foliage is that dense. The only solution, state police say, is to go over this terrain almost inch by inch.
Reporter Brian Mann closes with the cliche about looking for a needle in a haystack.  The helicopter (technology) may be helping, but the men are still missing seven days on… Like I said, "space tames law tames space."  Case closed.

A related New York Times story is here.  

Wednesday, June 10, 2015

Fifth Circuit abortion ruling will hurt rural women, but they don't even merit a mention in the opinion

The U.S. Court of Appeals for the Fifth Circuit ruled yesterday in Whole Women's Health v. Lakey that Texas House Bill 2 was constitutional—but with a few caveats.  This decision will bring the number of Texas abortion providers down to 7 or 8 (depending on what source you credit), whereas they numbered 44 in early 2013, before any part of H.B. 2 took effect.  Previously, in March, 2014, the Fifth Circuit upheld H.B. 2's requirement that abortion providers have admitting privileges at a hospital within 30 miles of where the abortions were performed.  Read my analysis of the cases here.   The Abbott decision took the number of abortion providers in Texas down to 18 because many abortion providers were unable to get admitting privileges for reasons the Lakey court acknowledged do not implicate the physician's skills.

Meanwhile, Texas remains the second most populous state in the nation, and the most recent data we have indicates that tens of thousands Texas women have abortions each year.  The plaintiffs in Lakey have indicated they will seek a say of the decision, pending appeal.  If that appeal is unsuccessful, just handful of clinics will serve that population.

Manny Fernandez and Erik Eckholm explain the consequences of the Lakey decision in the New York Times:
Previously, a panel of the same federal appeals court ruled that Mississippi could not force its only remaining abortion clinic to close by arguing that women could always travel to neighboring states for the procedure. But the panel in the Texas case on Tuesday held that the closing of a clinic in El Paso — which left the nearest in-state clinic some 550 miles to the east — was permissible because many women had already been traveling to New Mexico for abortions, and because the rule did not close all the abortion clinics in Texas. 
In the case of the McAllen clinic, the sole abortion provider in the Rio Grande Valley, Tuesday’s decision held that the distance of 235 miles or more to the nearest clinic did pose an undue burden. For now, at least, the Fifth Circuit panel exempted that clinic from aspects of the surgical-center and admitting-privileges requirements.
What the court seems not to realize is that—even if El Paso women can go to New Mexico for abortion services—a woman living half way b/w San Antonio and El Paso will have to travel more than 235 miles to get an abortion.   That is, she will have to travel to either San Antonio or to New Mexico.  So there is a significant inconsistency here.  Meanwhile, the court did not use the word "rural" or "nonmetropolitan," even as it acknowledged that women Rio Grande Valley would be unduly burdened by the combination of the two H.B. 2 provisions and the 235-mile journey to San Antonio.  

The Fifth Circuit rubber-stamped some very callous findings of the Fifth Circuit motions panel—including the fact that 900,000 Texas women who are more than 150 miles from an abortion provider do not matter for purposes of the "undue burden" standard because (1) 150 miles is not too far to travel/does not constitute an undue burden and (2) this 17% of Texas women do not constitute a "large fraction" of women impacted by the law.  

I have much more to say about this decision, which leaves Texas with a bizarre patchwork of abortion providers, all in north and east Texas and all along I-35 and I-45 corridors—except for McAllen  For now, however, I will comment on two other more "procedural" aspects of the opinion that I find to be of great interest.  First, this Lakey opinion was issued per curium, but was not the typical short and clear per curium opinion.  Read more here.  Second, the opinion took three months longer for the court to issue than its equally controversial opinion in Abbott in 2014.   Both Lakey and Abbott were argued in January (2014, 2015 respectively), but the Abbott opinion was issued in March 2014, while we waited until June 2015 for the Lakey decision.  I think it took Judges Prado, Elrod and Haynes some time to figure out how to achieve the result they wanted in Lakey, while not going completely over the top by saying that 235 miles is not an undue burden on the abortion right.  

Another story in the NYT, this one discussing the Lakey opinion in relation to many other cases and in relation to the undue burden standard is here.