Month: October 2022

Earlier today, the Supreme Court heard oral arguments in cases challenging Harvard’s an the University of North Carolina’s use of racial preferences in admissions. The plaintiffs contend that Harvard and UNC’s admissions policies violate Title VI of the Civil Rights Act of 1964, and that UNC—as a state institution—is also in violation of the Equal Protection Clause of the Fourteenth Amendment (which restricts discrimination by the government, but not that by private parties). Harvard and UNC argue that their policies promote educationally valuable “diversity,” a purpose for which previous Supreme Court rulings  Grutter v. Bollinger (2003) and  Fisher v. University of Texas II (2016) allow at least some use of racial preferences.

In this post, I go over the major options before the justices. The conservative majority on the Court is highly likely to rule against Harvard and UNC. But there are a number of different ways it could do so, which have divergent implications for future cases. In my view, the best option is for the Court to simply rule that “diversity” is not a “compelling state interest” justifying the use of racial discrimination by government under the Fourteenth Amendment, and that such discrimination also violates Title VI. But that’s far from the only option available to the justices.

The simplest way for the Court to decide these cases would be to reaffirm Grutter and Fisher II and uphold lower court rulings concluding that Harvard’s and UNC’s policies are legal. I’m not going to spend much time on this possibility, because it is highly unlikely to happen. It obviously goes against the inclinations of the conservative majority on the Court. And if that majority did want to maintain the status quo, they probably would not have decided to hear these cases in the first place. Not surprisingly, today’s oral arguments revealed that all six conservative justices are highly skeptical of the universities’ position.

The other relatively simple option is more likely. The Court could hold that educational diversity is not a legitimate justification for the use of racial preferences. One can make a plausible case that the text and original meaning of the Fourteenth Amendment permits the use of racial preferences for purposes of compensatory justice—offsetting a long history of discrimination against minority groups, particularly African-Americans. But there is no such historical or textual rationale for “diversity” preferences. That’s especially the case when the racial categories use to decide which groups get preferences and which do not are sweeping and arbitrary, often amounting to little more than crude racial and ethnic stereotyping. As my co-blogger David Bernstein points out in an amicus brief he file in the case:

Harvard and UNC cannot justify grouping people whose national origins represent
roughly 60% of the world’s population together as “Asian,” despite vast differences within this category in appearance, language, and culture. Nor can they explain why white Europeans from Spain, people of indigenous Mexican descent, people of Afro-Cuban descent, and South and Central Americans who may be any combination of European, African, and indigenous by descent are grouped together as “Hispanic.”

The “white” category is equally crude and arbitrary, lumping together such diverse groups as Arabs, Italians, and Russians. I cover some other flaws of the diversity rationale here and here. Among other things, if taken seriously, it creates a nearly limitless rationale for discrimination in favor of  a vast array of different groups. And if educational diversity is an important enough interest to justify racial discrimination, why not a wide variety of other government interests? For example, why can’t the state’s interest in promoting public safety and reducing crime justify the use of racial profiling by law enforcement? These interests seem at least as worthy as diversity.

The arbitrary nature of the categories used by the schools came up in today’s oral argument. For example, Justice Alito asked why a student from Afghanistan should be lumped in the “Asian” category along with Chinese and Japanese applicants, and whether such dubious choices make the classifications used by universities “arbitrary and, therefore, unconstitutional.” Ironically, as David Bernstein notes, Afghan applicants are usually classified as “white,” rather than Asian. But grouping them with Italians and Germans seems no less arbitrary than conflating them with Chinese and Japanese.

During oral argument, a number of the conservative justices seemed very open to overruling Grutter completely. But it’s not clear whether this position commands a majority.

The Court might instead prefer to rule against Harvard and UNC without barring the diversity rationale for preferences completely. In this scenario, it would continue to hold that diversity is a “compelling state interest” capable of justifying the use of racial classifications in admissions. But the majority would also rule that the crude categories used by Harvard and UNC aren’t enough to pass the other requirement  the “strict scrutiny” test the Court has long imposed on racial preferences: such policies must also be “narrowly tailored” to the achievement of the compelling interest that justifies them.

In Grutter and Fisher II, the Court claimed to apply strict scrutiny, but actually gave university officials great deference in determining what kind of diversity would create educational benefits, and what kinds of racial preferences were needed to achieve it. In the Harvard and UNC cases, the Court could take a much less forgiving approach, and require universities to clearly specify what benefits of diversity they are seeking, and provide strong evidence that racially preferences really do achieve those benefits in a way that cannot be matched by race-neutral policies.

For fans of stare decisis, this approach would have the virtue of avoiding the need to overrule any prior Supreme Court precedents. The Court would tighten up the strict scrutiny already required by Grutter and Fisher II, but would leave much of the holdings of those two decisions untouched.

In today’s oral arguments, several conservative justices asked how long diversity preferences should last, how we can measure the claimed educational benefits of diversity, and whether admissions policies could be more precisely tailored to the achievement of those benefits. Those questions might indicate an interest in tightening up judicial review of diversity preferences, without banning them completely.

If the Court adopts the tightened strict scrutiny approach, it would likely lead to extensive future litigation, as universities try to restructure their racial preference policies to conform to the new, tighter rules (or at least pretend to do so).  It would also still leave in place the anomaly under which diversity qualifies as a compelling enough interest to justify racial preferences, but many other comparably worthy government interests do not.

In addition to deciding whether to ban the diversity rationale or merely subject its use to tighter scrutiny, the Court will also need to determine whether it wants to rule against the universities based on Title VI alone, or also (in the case of UNC) under the Equal Protection Clause. The text of Title VI seems to categorically ban all racial and ethnic preferences in education programs receiving federal funding (as do the vast majority of universities, including Harvard):

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Notice there is no exception here for racial and ethnic preferences adopted for purposes of promoting diversity, or indeed for any other reason. If the justices base their decision on Title VI alone, they could easily strike down both the Harvard and UNC programs, and spare themselves the much more complex task of analyzing the meaning of the Fourteenth Amendment.

But the Court has has long interpreted Title VI to allow racial preferences in education, in situations where its interpretation of the 14th Amendment would permit them. And the justices have a strong presumption against reversing their own statutory precedents—much stronger than that against reversing constitutional decisions. That makes a decision based on Title VI alone, less likely. But the justices could decide that earlier decisions’ misinterpretation of Title VI is so egregious that it warrants reversal. Few if any major statutory precedents so obviously go against the clear meaning of the text.

During oral argument in the UNC case, Justice Neil Gorsuch seemed very interested in the possibility of issuing a ruling based on Title VI. He noted that “Justice Stevens made a powerful argument in Bakke [the 1978 case where the Court first addressed the use of racial preferences for diversity purposes] that whatever the Fourteenth Amendment permits or does not permit, Title VI’s language is plain and clear…..  and Title VI does not permit discrimination on the basis of race.” Whether any of the other justices choose to pursue this option remains to be seen.

Should the Court rule against Harvard and UNC based solely on Title VI, without reaching the constitutional issue, Congress would (at least for now) be free to amend Title VI to allow diversity-based preferences. But any such legislation would be hard to pass, given the extreme unpopularity of racial preferences in higher education, which are opposed by over 70% of the public, including large majorities of both Democrats (62%) and Republicans (87%), blacks (59%), whites (79%), Hispanics (68%) and other groups.

The extreme unpopularity of racial preferences might incline wavering justices towards a broad ruling against them. To the extent that Chief Justice John Roberts and others might be concerned about the Court’s diminished popularity, a strong ruling against Harvard and UNC could actually give the institution a boost. At the very least, public opinion on this issue suggests there is no reputational downside to ruling for the plaintiffs.

I should, however, emphasize that the unpopularity of racial preferences does not by itself tell us much about whether they are good policy, much less whether they violate the law. As the author of a book on political ignorance, I’m well aware that majority public opinion is often badly wrong. Thus, the fact that most of the public happens to agree with me on this issue certainly doesn’t prove that my view is right.

Some commentators, most notably, Yale Law School Prof. Justin Driver, have suggested that the Court could—at least temporarily—save affirmative action by relying on Justice Sandra Day O’Connor’s statement in her majority opinion in Grutter, that “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary.” There are still six years left until the expiration of this seeming deadline. But I am highly skeptical of the idea that the Court will or should use this statement to temporarily preserve racial preferences. Among other things, the 25 year standard is, at most, a maximum, not a minimum. It doesn’t guarantee that racial preferences will remain legal until 2028; it merely suggests that they should no longer be after that point.

O’Connor’s 25 year rule was often mentioned in today’s arguments. But I see no indication that any of the conservative justices are inclined to conclude that racial preferences should be preserved for another six years on that basis.

Finally, the justices will have to consider the questions raised by Harvard’s apparent policy of specially disfavoring Asian-American applicants, even relative to whites. Several justices raised this issue in the Harvard oral argument, including Alito, Gorsuch, and Chief Justice Roberts.

If the Court rules that racial preferences are categorically forbidden, then that ruling will dispense of Harvard’s anti-Asian policies, as well. But if some diversity-based preferences are held to be legal, then the Court might have to adopt some sort of rule for dealing with situations where an institution deliberately tries to reduce the presence of some minority group in the student body, for fear that otherwise there would be too many of them. In my view, the justices would do well to make clear that, even if some diversity-promoting preferences are permissible, they cannot justify targeted anti-Asian discrimination, any more than it would justify targeting blacks, Jews, or any other specific minority group. Anti-Asian discrimination in the name of promoting diversity is a significant issue in both elite college admissions, and at some selective public high schools, as well. The practice is reminiscent of early-20th century discrimination against Jews at some of the same institutions.

Even if the Court categorically bans diversity-based racial preferences, universities might still try to pursue them surreptitiously, for example by using facially neutral admissions criteria that correlate with race. Such practices may well result in future litigation. But rulings against Harvard and UNC could nonetheless curb racial preferences, even if they don’t completely eliminate them. Surreptitious preferences that must remain hidden, lest they attract lawsuits, are at least harder to implement and maintain than open ones. It’s hard to keep a secret in a large bureaucracy, like the admissions offices of major universities.

Overall, it seems highly likely that the Court will rule against Harvard and UNC in the cases argued today. But there are multiple different approaches the justices can take in the reasoning of their decisions.

The post The Supreme Court's Options in the Harvard and UNC Affirmative Action Cases appeared first on Reason.com.

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In this week’s The Reason Roundtable, editors Matt Welch, Peter Suderman, and Nick Gillespie celebrate the triumphant return of Katherine Mangu-Ward with a conversation about Elon Musk’s Twitter takeover and the chatter around political violence in the U.S.

1:36: Elon Musk takes over Twitter

11:19: The Paul Pelosi attack and political violence

29:00: Weekly Listener Question:

I was pretty horrified by the $2,500 fines PayPal was handing out. They retracted them, sure, but it was no accident. They targeted a few of my favorite websites. I consider myself libertarian-leaning and agree with you guys on a host of issues. But I always get confused when you defend PayPal as NOT being a monopoly. I mean, forget about a dictionary definition and just think in terms of utility: What viable alternatives do I have in the digital marketplace right now? Let’s say I’m horrified by what they’re doing and want to vote with my dollars. Because I really really do. What service should I use instead? Venmo? I think they’re also owned by PayPal.

40:10: What’s currently scariest in government and politics?

48:03: This week’s cultural recommendations

Mentioned in this podcast:

“Musk Says He Bought Twitter ‘To Help Humanity,’ Pledges Not To Let It Become a ‘Free-for-All Hellscape,’” by Elizabeth Nolan Brown

“Twitter Sucks Because We Suck. Don’t Blame @Jack,” by Mike Godwin

“Why Is Twitter a For-Profit Platform, Anyway?” by Andrea O’Sullivan

“Political Violence Escalates in a Fracturing U.S.,” by J.D. Tuccille

“The Dangerous Lure of Political Violence,” by Katherine Mangu-Ward

“To Curb Political Violence, Make Government Less Important,” by J.D. Tuccille

Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.

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Audio production by Ian Keyser

Assistant production by Hunt Beaty

Music: “Angeline,” by The Brothers Steve

The post Twitter Was Already a Hellscape Even Before It Was Set Free appeared first on Reason.com.

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Race-based affirmative action in college admissions is likely on its way out, as the Supreme Court began hearing arguments in two cases challenging the policy.

On Monday, the Supreme Court began hearing arguments on two cases brought by Students for Fair Admissions (SFFA), an anti-affirmative action group, seeking to challenge the University of North Carolina (UNC) and Harvard University’s race-conscious admissions policies. While the Court has sided in favor of colleges seeking to use race-based affirmative action policies in the past, most recently in 2016, the Court’s current conservative majority leads legal experts to believe that the policy will most likely be ruled unconstitutional.

The cases against the schools were filed separately, with the case against UNC filed in 2014 and the case against Harvard filed in 2015. The Supreme Court combined the cases in January of this year but separated them again so that Justice Ketanji Brown Jackson, a former member of the Harvard Board of Overseers who had recused herself from the case against Harvard, could participate in the UNC case. Arguments in both cases began on Monday.

In the case against UNC, SFFA argues that the school’s race-based affirmative action policies violate the Constitution’s equal protection clause and Title VI of the Civil Rights Act. As Harvard is a private university, SFFA is only arguing that Harvard’s policies violate the Civil Rights Act.

In both cases, SFFA alleges that race-conscious admissions procedures amount to illegal racial discrimination against white and particularly Asian applicants. The case against UNC sticks to attacking the school’s affirmative action policy, but the case against Harvard is more complex. SFFA argues that Harvard’s consideration of race in admissions includes both affirmative action policies and an attempt to penalize Asian students in particular by encouraging interviewers to rank them lower than other groups on a “personal rating”—a score from 1–6 (with 1 being the highest score) that measures traits like “courage,” “likability,” and “kindness.” SFFA argues that Harvard ranks Asian applicants much lower on this subjective metric to justify rejecting them at higher rates than other racial groups—despite the demographic having the highest average test scores of any racial group.

“According to an unrebutted model of the personal rating, Asian Americans receive the lowest personal ratings among all races,” wrote SFFA attorneys in their petition for a writ of certiorari in the Harvard case. “Harvard concedes that Asian Americans suffer a penalty on the personal rating—that changing an applicant’s race from white to Asian lowers the personal rating to a statistically significant degree.”

SFFA argues that in both circumstances, UNC and Harvard can achieve racial diversity by favoring economically disadvantaged students rather than students from certain racial backgrounds.

In response, both Harvard and UNC argue that their practices are legal and protected under current precedent, which supports race-conscious admissions because it is a narrowly tailored practice used to achieve the compelling state interest of attaining a diverse student body. Harvard believes that “a diverse student body is central to fulfilling our educational mission, that diversity enhances education for all, and that Harvard does not discriminate against any group in its admissions practices,” Harvard President Lawrence Bacow wrote in a July statement. “We remain steadfast in our belief that every college and university must retain the freedom and flexibility to create the diverse educational communities that will prepare their students for the opportunities and challenges they will confront in an increasingly diverse society.”

If the Supreme Court decides to end affirmative action in college admissions, the decision will likely be greeted with support by most Americans, including majorities of the very racial groups affirmative action policies are designed to benefit.

According to 2022 polling from Pew Research, 74 percent of Americans believe that race or ethnicity should not be a factor in college admissions decisions, while only 7 percent believe it should be a “major” factor. A majority of all racial groups polled believed that race should not be a factor in college admissions, including 59 percent of black respondents and 68 percent of Hispanic respondents.

Affirmative action policies in college admissions are likely nearing their final days. While the Supreme Court has twice defended the use of race-conscious admissions in recent years, the Court’s conservative majority is very likely to overturn precedent and rule that race-based affirmative action policies are unconstitutional. 

The post The Supreme Court Could End Affirmative Action appeared first on Reason.com.

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Earlier this year, the Department of Homeland Security (DHS) created an internal board dedicated to combating misinformation and disinformation. Despite scrapping it after facing criticism, new reporting indicates that the agency is still pursuing the constitutionally dubious project.

The DHS announced the Disinformation Governance Board in April specifically to address Russian disinformation and false information spread by border traffickers. Nina Jankowicz, a Wilson Center fellow and “disinformation expert,” was put in charge.

The board immediately garnered controversy, both for its “Orwellian” overtones as well as Jankowicz’s then-recent statements decrying “free speech absolutists” and advocating for more countries to criminalize “‘awful but lawful content.'”

Within days, DHS Secretary Alejandro Mayorkas clarified that the board had no regulatory power and was simply meant to determine “best practices” for dealing with misinformation and disinformation. Less than three weeks after the initial announcement, the DHS “paused” the board’s rollout, and Jankowicz resigned. After DHS advisers indicated no need for such a board in the first place, Mayorkas dissolved it in August.

After resigning, Jankowicz told NPR that “everything you may have heard about the Disinformation Governance Board is wrong or is just a flat out lie” and that “we weren’t going to be doing anything related to policing speech.”

But reporting from The Intercept this week indicates that the government is indeed actively involved in policing disinformation, often pressuring private companies to do so on its behalf.

The outlet cites a number of both public and leaked documents showing internal DHS deliberations regarding influencing websites and social media platforms. Beginning in the lead-up to the 2020 election, representatives from the DHS and the FBI began holding monthly meetings with tech companies, including social media platforms, to discuss what the companies should do about election misinformation.

The government reported nearly 4,800 social media posts to the respective platforms during the election. More than a third were then either removed or labeled as potential misinformation. Facebook even developed an online portal, accessible only with a government or law enforcement email, for reporting content directly.

Hostile foreign actors spreading disinformation is certainly a real thing (if not always particularly effective). But the vast majority of online misinformation is likely to be much more prosaic. In one amusing example cited by The Intercept, the DHS forwarded accounts to Twitter that could be mistaken for official government entities; one, with fewer than 60 followers, featured the Twitter bio, “dm us your weed store locations (hoes be mad, but this is a parody account).”

Policing misinformation also poses numerous risks to free speech. This was one of the justifications initially given for shutting down the Disinformation Governance Board. With narrow exceptions, false statements are protected by the First Amendment, and any broad efforts to restrict misinformation would have a chilling effect on other speech.

For example, the New York Post reported in 2020 that a laptop belonging to then-candidate Joe Biden’s son Hunter turned up at a Delaware repair shop, full of salacious and potentially damaging information. The story was widely panned, including by Jankowicz, as likely Russian disinformation. Twitter banned users from sharing the article, and Facebook limited its spread as well. But a year and a half later, The New York Times largely confirmed the veracity of the original report.

The laptop story provides a useful template for how DHS influence over social media moderation could look. In fact, according to The Intercept, an FBI agent and an FBI section chief were directly involved in talks that “led to Facebook’s suppression” of the Post story. And a draft copy of the DHS’s Quadrennial Homeland Security Review includes, among the topics it hopes to police for misinformation, “the origins of the COVID-19 pandemic and the efficacy of COVID-19 vaccines, racial justice, U.S. withdrawal from Afghanistan, and the nature of U.S. support to Ukraine.”

Reasonable people can, and do, disagree on any or all of those topics. But accepted facts can change over time. The origins of the COVID-19 pandemic provide a useful test case, such as the shift of the “lab leak” theory from fringe conspiracy to plausible alternative.

The government has a terrible track record for deciding which speech is appropriate and which is not, and yet government agents do not seem dissuaded. As one Microsoft executive texted a DHS director*, “Platforms have got to get comfortable with gov’t. It’s really interesting how hesitant they remain.” Interesting, indeed.

*CORRECTION: An earlier version of The Intercept‘s article stated that “a DHS official texted a representative from Microsoft.” It was later stealth-edited to say that “Microsoft executive Matt Masterson, a former DHS official, texted Jen Easterly, a DHS director.”

The post DHS Still Policing Disinformation Despite Dissolving Disinformation Governance Board appeared first on Reason.com.

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Abortions overseen by U.S. clinicians fell by 6 percent between April and August, according to a new report from the Society of Family Planning (SFP). The net abortion drop attributable to new restrictions imposed after the Supreme Court overturned Roe v. Wade in June is probably considerably smaller than 6 percent, however, because the tally did not take into account seasonal variation or self-managed abortions.

The full impact of the Court’s June 24 ruling in Dobbs v. Jackson’s Women’s Health Organization has not been felt yet, because the number of states with bans or severe restrictions on abortion is likely to grow. But these preliminary data illustrate both the power and the practical limitations of state laws that notionally require women to continue pregnancies they want to end.

The SFP’s #WeCount analysis, which Reason‘s Elizabeth Nolan Brown noted earlier today, is based on data from providers who accounted for 82 percent of abortions performed at or through medical facilities, augmented by estimates based on information from other sources. The net decline reflects both sharp decreases in some states and substantial increases in others, driven by women who traveled to obtain abortions. For some women, the costs of that option surely proved prohibitive, forcing them to continue their pregnancies. But it is hard to say how large that group was, since many women may have used drugs to induce abortions without the assistance of the medical professionals that the SFP surveyed. Given that option and uncertainty about the April baseline used in the study, the decline reported by the SFP should be viewed with caution.

“The estimated number of abortions provided by a clinician decreased from
85,020 abortions in April 2022, before the [Dobbs] decision, to 79,620 abortions in August 2022,” the SFP reports. “Since the Dobbs decision, there were 5,270 fewer abortions in July and 5,400 fewer in August, for a cumulative total of 10,670 fewer people who had abortions in those months.”

Pro-life groups welcomed that finding. “We are celebrating the fact that at least 10,000 babies have a chance at life,” said Students for Life President Kristan Hawkins. But that reading of the results is misleading because of the study’s limitations.

“We did not account for seasonality-related changes in abortion volume, which usually means a decline in summer months,” the SFP report notes. In other words, some of the decline between April and August may be due to seasonal variation rather than new legal restrictions.

Self-managed abortions introduce further uncertainty. When a woman obtains abortion pills without contacting a clinic, the resulting termination of her pregnancy does not show up in the numbers compiled by the SFP, the Guttmacher Institute, or the Centers for Disease Control and Prevention. “While the overall decline suggests that many people who need[ed] abortions did not travel to other states, we are unable to estimate the number of abortions that occurred outside the formal healthcare system, such as via Aid Access or volunteer ‘accompaniment’ networks in Mexico,” the SFP report notes. “Thus, we are unable to estimate how many pregnant people self-managed their abortions versus carried to term.”

The share of abortions performed with drugs was rising even before Dobbs, and even before the Food and Drug Administration (FDA) made permanent a rule allowing the use of mifepristone without a medical visit last December. The recent proliferation of state restrictions has made that option more appealing to many women.

A JAMA Network Open study found that requests to Aid Access from Texas skyrocketed after a law banning abortion when fetal cardiac activity can be detected (typically around six weeks of gestation) took effect last September. A 30-state JAMA study  scheduled to be published tomorrow amplifies that finding by looking at increases in “requests for self-managed medication abortion provided using online telemedicine” after Dobbs.

The SFP report notes that “abortions provided by virtual-only clinics increased from 2,830 in April 2022…to 3,780 in August 2022,” which represents “an increase of 33% in the number of abortions provided from virtual-only services.” Those numbers reflect only the drug-induced abortions that clinicians covered by the SFP survey provided. The number of such abortions that women induced on their own is unknown.

One thing that is clear from the SFP report is that the impact of Dobbs has varied dramatically from one state to another. In states with strict bans, such as Alabama and Texas, the number of clinic abortions fell to zero or nearly zero between April and August. But several states where abortion remains legal saw sizable increases in clinic abortions. Those states include Illinois, where clinic abortions rose by 28 percent; Montana and Nebraska, both of which saw a 30 percent increase; Colorado (33 percent); Kansas (36 percent); and North Carolina (37 percent). All of those states are near jurisdictions with abortion bans.

Overall, the SFP says, “the estimated number of abortions provided by a clinician in states that banned or severely restricted abortion (such as a 6-week ban) decreased from 8,500 abortions in April before the decision to 460 abortions in August 2022.” In those states, “there were 7,870 fewer abortions in July and 8,040 fewer in August, for a cumulative total of 15,910 fewer people who had abortions in those states.” In states with substantial but less severe restrictions, “there were 2,160 fewer abortions in July and 4,460 fewer in August, for a cumulative total of 6,620 fewer people who had abortions in those states.”

Partially offsetting those numbers, “the estimated number of abortions provided by a clinician in states where abortion remained legal with few restrictions increased from 62,600 abortions in April…to 69,740 abortions in August.” Those states also saw increases in July, “for a cumulative total of 11,980 more people who had abortions.”

The difference between those two cumulative totals is more than 10,000—the number that pro-life activists are highlighting. But as The New York Times notes, “the total decrease in abortions is likely to be lower” because of the methodological limitations that the SFP mentions.

Whatever the actual number, the effect was concentrated among women whose geographical, socioeconomic, and personal circumstances made traveling to other states for abortions especially difficult. “The declines in the numbers of abortion occurred in the same states with the greatest structural and social inequities in terms of maternal morbidity and mortality and poverty,” the SFP notes. “Thus, the impact of the Dobbs decision is not equally distributed. People of color and people working to make ends meet have been impacted the most. This inequity is corroborated by other studies, including one finding that after Dobbs, Black, Indigenous, and other people of color experienced the greatest increases in travel time to abortion facilities.”

Before Dobbs, Middlebury College economist Caitlin Knowles Myers noted that “a post-Roe United States isn’t one in which abortion isn’t legal at all.” Rather, “it’s one in which there’s tremendous inequality in abortion access.” That is the situation we are seeing now, which is why pro-choice organizations increasingly are trying to ameliorate those unequal burdens by helping women of modest means obtain abortions.

Last year, based on a scenario in which 22 states banned abortion, Myers projected that the annual number of abortions in the U.S. would fall by about 14 percent. Based on the Guttmacher Institute’s estimate for 2020, that would amount to something like 130,000 fewer abortions a year, more than twice the annual decline suggested by the SFP’s initial numbers. But legal changes are ongoing, so the ultimate impact may end up being closer to Myers’ projection.

The SFP counts 13 states that have “banned or severely restricted abortion”: Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas, and Wisconsin. The report counts nine states that have “restricted access” to abortion: Arizona, Florida, Georgia, North Dakota, Ohio, South Carolina, Utah, West Virginia, and Wyoming. Some states are apt to move from the second category to the first. In Arizona, for example, an 1864 ban could take effect next year, depending on the results of ongoing litigation. The situation in Utah is similar.

In addition to litigation and the pressures of public opinion (which make a strict ban look politically iffy in Florida, for example), all of these states will have to contend with the fact that abortion remains “legal with few restrictions” in 28 states and the District of Columbia. They will also have to contend with the practical availability of abortion pills, a challenge that cannot be met simply by passing new laws. Since those pills are approved by the FDA and remain legal in most states as well as many other countries, that challenge is even more daunting than the one that the war on drugs has faced for more than a century.

The post Estimated Drop in Clinic Abortions Does Not Take Into Account Seasonal Variation or Self-Managed Abortions appeared first on Reason.com.

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From Freeman v. Giuliani, decided today by Chief Judge Beryl Howell (D.D.C.); the court concluded that the facts as alleged by plaintiffs would, if proved, suffice to authorize liability—naturally, there’s still question whether plaintiffs will introduce enough evidence to defeat an eventual motion for summary judgment, and whether they will eventually persuade a jury (or whether the case will settle in light of that possibility):

After the polls closed across the country on November 3, 2020—the first Presidential election in U.S. history to be conducted in the midst of a deadly global pandemic—the results in some states were immediately called, with either former Vice President Biden or then-President Trump declared the obvious winner. In other states, including Georgia, the margins of victory were substantially closer, and voters and candidates went to bed that night not knowing who had won. As days passed, local and state election officials diligently conducted the counting of absentee ballots and manual recounts, but the void of clear results became filled with increasingly outlandish paranoia from those claiming the election was being “stolen.”

Defendant Rudolph Giuliani—a current media personality and former politician once dubbed “America’s mayor”—propagated and pushed that false narrative. Caught in the crossfire of Giuliani’s campaign to undermine the legitimacy of the 2020 election were plaintiffs Ruby Freeman and Wandrea ArShaye (“Shaye”) Moss (collectively, “plaintiffs”). Freeman was a temporary election worker with the Fulton County Registration and Elections Department in Fulton County, Georgia during the 2020 general election, while Moss worked on Fulton County’s absentee ballot operation. After Giuliani made a litany of statements and accusations against plaintiffs concerning their activities as election workers, Freeman and Moss initiated the instant lawsuit in December 2021, against Giuliani, and others, for[, among other things,] defamation ….

Giuliani’s alleged statements accuse plaintiffs of criminal activity—which can be proven to be true or false in court—and, consequently, he cannot seek refuge under the opinion doctrine …. Even if Giuliani made clear that his statements were his own subjective views, those statements still included accusations of election fraud that can be verified as true or false. See, e.g., Am. Compl. ¶ 60 (“Ruby Freeman is seen surreptitiously & illegally handing off hard-drives”); ¶ 66 (“There’s a video recording in Fulton County, Georgia, of what is obviously, without any doubt, the theft of votes…. [O]bservers are being thrown out of the room. A phony excuse of a water main break was used.”); ¶ 69 (“Ruby Freeman and her crew getting everybody out of the center, creating a false story that there was a— that there was a water main break”); ¶ 72 (“[T]hey got rid of the public, and they started triple counting ballots[.]”); ¶ 91 (“Now you take the two women who ran that, there are other tapes of them earlier in the day, handing off—handing off small, hard drives and flash drives, those flash drives were used to put in the machines[.]”); ¶ 99 (“Then they opened up this big blanket and under all the whole, all these ballots and then with no one observing in violation of the law they very seriously tried to count all these votes.”). The fact that Giuliani directs listeners to view the Edited Video for themselves is beside the point. If Giuliani falsely characterized plaintiffs’ actions in the Edited Video, his statements are still actionable because they imply verifiably false facts….

Although whether Freeman is a private figure or a limited-purpose public figure is a relevant issue, Freeman has done all she must to do at this stage: allege that she is a private figure. The pleading burden on plaintiffs would be too onerous if they were required not only to anticipate whether a defendant would raise a limited-public-figure defense, but, on top of that, also to find and elicit facts before discovery that shed light on the defendant’s state of mind to prove actual malice. For these reasons, a plaintiff does not have an “obligation to anticipate in its complaint the need to plead facts to defend against defendants’ assertions that [she] is a public figure.” …

Even assuming that Freeman were required affirmatively to plead she was not a limited-purpose public figure, and assuming, arguendo, that Freeman was a limited-purpose public figure (an issue this Court does not decide), Giuliani must still then show that Freeman did not plead sufficient facts to show he made statements regarding her purported criminal history with actual malice. Freeman has sufficiently pled those facts, so Giuliani’s argument goes nowhere….

Freeman’s actual-malice argument is as follows. First, the Strategic Plan expressly concedes that whether Freeman was arrested for voter or election fraud needed to be confirmed. Strategic Plan at 21 (emphasis added) (“Ruby Freeman (woman in purple shirt on video), now under arrest and providing evidence against GA SOS Stacey Abrams and DNC on advanced coordinated effort to commit voter / election fraud [need confirmation of arrest and evidence].”). On top of this, Giuliani concedes that public reporting had shown that there was no truth to the allegation that Freeman “had been arrested/had a criminal record regarding voting fraud” before Giuliani made his statements regarding Freeman. Def.’s Mot. at 47 (discussing an article by Snopes.com reporting that Freeman was not arrested for committing crimes related to election fraud in Georgia); see also Dan Evon, Ruby Freeman Was Not Arrested by the FBI, Snopes.com (Dec. 18, 2020), https://ift.tt/Ga1OHco. Despite that lack of confirmation, on December 23, 2020—four days before when the plaintiffs allege the Strategic Plan was likely published—Giuliani publicly accused Freeman of having “a history of voter fraud participation.” Am. Compl. ¶ 66. Plaintiffs also allege that Giuliani caused the publication of Trump’s statement on January 2, 2021, when he called Freeman a “professional vote scammer” and “known scammer[.]” Id. ¶¶ 80–81.

Freeman has plausibly alleged Giuliani made statements about her criminal activity/history with actual malice. When taken together, these allegations at least plausibly suggest that Giuliani fabricated Freeman’s arrest and criminal record out of whole cloth: Giuliani accused Freeman of election fraud before the Strategic Plan was allegedly published, even though the Strategic Plan (which Giuliani was at least plausibly an author) noted that the Trump Campaign still needed evidence that she was arrested for that very criminal activity. Cf. Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257, 284 (D.D.C. 2017) (denying defendants’ motion to dismiss on actual malice grounds in a defamation case because plaintiffs alleged that defendants “failed to uncover a single reported piece of evidence corroborating [the sole source’s] outlandish claims”). When viewing the Amended Complaint’s factual allegations in the light most favorable to the plaintiffs, this evidence is enough to suggest that Giuliani recklessly accused Freeman of being arrested for election fraud.

For these reasons, plaintiffs have pled a plausible defamation claim under D.C. law….

The post Rudy Giuliani's Motion to Dismiss Election Workers' Libel Lawsuit Denied appeared first on Reason.com.

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