Unconstitutional and Unacceptable: H.R. 36’s 20-Week Abortion Ban

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This post was written by Brenna Gautam and Rebecca Reingold.

Image courtesy of Vogue

Earlier this month, on October 3, the U.S. House of Representatives passed H.R. 36, the “Pain-Capable Unborn Child Protection Act.” Under H.R. 36, it is a crime for any person to perform an abortion if the probable post-fertilization age of the fetus is 20 weeks or more.

This federal ban on virtually all abortions 20 weeks after fertilization marks a departure from the U.S. Supreme Court’s abortion-related jurisprudence and flies in the face of both international and comparative law standards.

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Posted in Human Rights; Tagged: , , , , .


A Thoughtful Comparison of the Government’s Response to Crack Epidemic of the 1980s vs. the current Opioid Epidemic: A look at criminalization, race, and treatment

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Crack Cocaine (Photo Credit: www.dea.gov)

I grew up in Brooklyn, New York in the 1980s. I saw a lot of things many children not raised in a big city never experience. One of the things I remember is seeing some of my neighbors – who had previously been vibrant people who chatted with my parents in the building lobby or waved to me while I stood at the school bus stop – become shells of their former selves caused by, according to my 10-year old comprehension, some mysterious illness. I would overhear my parents talking about them, but they were skillful to not reveal details in front of me and my sister. One night, one of my neighbors rang our doorbell. My parents were busy, so I answered the door as I often did. In front of me was my friend’s uncle. He was one of those “cool uncles” who would crack jokes with us, smoked cigarettes, wore a leather jacket (again, it was the 80s), and would sometimes hook us up with money for the ice cream truck . However, that night he appeared sweaty and anxious with bloodshot eyes. “Hey, where’s your mom?” he asked. All of a sudden, my father appeared and practically knocked me to the ground away from the door.

– “Hey, Mr. B, can I get a few dollars?” 

– “No. You have to go. Do not come by this house anymore asking for money!”

– “OK. I’m sorry. I’m sorry.”

As I stood there confused with a look on my face to match, my father realized he had to tell me the truth about what was going on with the “illness” that had befallen some of our neighbors.

That illness was crack addiction.

I had heard about crack through rumblings at school or the occasional blurb on TV, but I didn’t think it was something that would ever affect me. That experience and my dad’s subsequent lecture on the emerging epidemic marked the chillingly harsh and permanent removal of the rose-colored glasses of my childhood. All at once my friends and I were aware of the empty plastic vials in the cracks of the sidewalks that we previously dismissed as innocuous litter. I watched those formerly chatty neighbors from my bedroom window as they stumbled out of our building late at night, looking more frail and twitchy each time, until I stopped seeing some of them altogether.

The National Response to the Crack Epidemic of the 1980s

“Crack” is a form of cocaine that is processed with baking soda to form small crystalline clumps (‘crack rocks’) that users smoke in glass pipes and ‘crackles’ as it burns, hence its name. Crack produces an instantaneous, brief euphoric high for its users, followed by depression, anxiety, exhaustion and ultimately brain damage. Traditional powder cocaine was expensive and was a drug of choice for wealthier people, but this process of cutting cocaine brought down the price to about $5-$20 per dose, making the drug accessible to low-income people.

The allure of crack spread swiftly through low-income, inner-city, mostly black and hispanic communities throughout the U.S. in the 1980s. As someone who is hispanic and was living in a mostly black and hispanic inner-city community in the 1980s and 1990s, I was quite aware of the impact of crack on my community. The terms “junkie”, “crackhead”, and “addict” became prevalent in the common lexicon and on the news. We school children were subjected to regular D.A.R.E. workshops where cops attempted to inure us with enough fear that we’d steer clear of drugs.

The most prominent reaction to this burgeoning catastrophe was the rise of the “War on Drugs” laws and policies enacted by federal and state governments. While First Lady Nancy Reagan was going around the nation telling children to “Just Say No!” to drugs, President Reagan was resurrecting the Nixon-era “War on Drugs” initiative by allocating $1.7 billion towards anti-drug law enforcement programs, which included changing laws to enable more charges and harsher penalties for drug-related crimes, and imposing mandatory-minimum prison sentences for drug offenses. The focus of the “War on Drugs” was, to paraphrase President Nixon, to treat drug abuse as “Public Enemy Number One” in the U.S. This policy emphasized criminalizing the manufacture and trafficking as well as the use of illegal drugs. Addicted persons were seen as criminals with anti-social behaviors rather than people with physical, mental or behavior health issues.

Throughout this peak in the epidemic, families were being devastated by heads of households becoming “crackheads”. Babies were born with debilitating drug addictions. The nation’s prison population exploded, with the number of people incarcerated for nonviolent drug offenses jumping from 50,000 in 1980 to 400,000 by 1997. Federal laws were passed that imposed a 100 to 1 ratio on cocaine versus crack offenses, in an effort to deter growing crack usage. This meant that if a person in possession of 500 grams of cocaine got 5 years in prison, a person in possession of just 5 grams of crack cocaine would incur the same sentence. Since approximately 80% of crack users were African American, poor black communities bore the brunt of the criminal and societal consequences of the epidemic.

Using the “Disease Model” to address the Nation’s current opioid epidemic

Fast forward to current times when the nation is faced with another devastating drug abuse crisis. As it was to the crack epidemic, the government’s reaction to the opioid epidemic has been swift and aggressive, but it has had a noticeably less accusatory and punitive tone. There have been careful actions taken to minimize the use of stigmatizing words like “addicts” and “drug abusers”, instead referring to people as “persons who inject drugs” or “opioid misusers.” Instead of a crime and punishment “Public Enemy Number One” crisis, the opioid epidemic is being treated as a public health emergency, and those affected by it are seen as needing treatment and psycho-social interventions to remediate their problem. News stories that cover the epidemic foster sympathy for the people, families, and communities affected by this crisis, which are predominantly white, rural or suburban areas.

Rather than imposing mandatory harsh jail sentences for opioid offenses, courts are “sentencing” users to mandatory rehab. Fifty-nine million dollars in grants being issued by the Justice Department are not focusing on convicting and jailing opioid misusers, but rather providing resources to communities to improve their capacity to provide medical and behavioral health support to users.

What has spurred this shift in approaches? “Lessons learned” or demographic differences?

I cannot help but to look at the differences in approaches to these 2 drug crises with a cynical eye. There have been acknowledgements from government officials that the current holistic approach to the opioid epidemic was developed from the lessons learned from the harsh response to crack in the 1980s, but I would be remiss if I did not use my mantle as a public health and legal professional to not bring attention to the demographic differences of these 2 epidemics and how that may have influenced the government’s tactical approaches. The fact is that minority groups in the US are woefully accustomed to seeing this type of dichotomy when it comes to issues that affect brown Americans versus white Americans. Like it or not, that is still the reality of this country, even in 2017. Look at the relief response to Puerto Rico and the U.S. Virgin Islands. While there are always those who will scoff at the use of race to criticize governmental actions, those of us who have had to live and breathe racial and ethnic disparity our entire lives have become adept to reading between the lines and interpreting the subtleties of implicit bias in ways that those not from a historically discriminated-against racial group could never understand and quite frankly should not interject an opinion.

Overall, I am glad that the US is using a more holistic, treatment-based approach to the opioid epidemic, because it is proving to be catastrophic. However, I am saddened that millions of others were not given the same benefit to be saved from the grips of crack cocaine, and for their families to garner the same sympathy and compassion from the general public. Our jails are still filled with people serving obscenely long federal prison sentences for non-violent drug crimes. I also see little in the current opioid policies that benefit those affected by other drug epidemics like crack as part of an effort to make these holistic interventions available to them as well, to right the wrongs of the 1980s “War on Drugs” approach.

The nation’s response to the opioid epidemic should serve to reform its policies on drug abuse as a whole, not just drug abuse issues that affect certain populations.

Posted in National Healthcare, Uncategorized; Tagged: .


Nobel Peace Prize 2017 and the Power of International Legal Norms

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Image courtesy of the Nobel Prize website.

With the nuclear threat is on the rise, I was a bit surprised last week when I heard that the International Campaign to Abolish Nuclear Weapons (ICAN) had won the 2017 Nobel Peace Prize. It seemed out of step with today’s reality.

But as I reflected more and learned the reasoning behind the decision, the Nobel Committee’s choice grew on me. ICAN had achieved a great victory this year – a victory not so much for them, but for the future everyone on our planet, even as it is a victory that will take many years to turn from a legal and symbolic achievement to one with real world effect.

Image courtesy of ICAN.

That victory was a treaty to ban nuclear weapons, or more specifically, to prohibit the development, production, acquisition, and production, the use or threat of use, and the transfer of nuclear weapons, or stationing such weapons on the state’s territory. Already more than 50 states have signed the Treaty on the Prohibition of Nuclear Weapons, which only opened for signature last month, and several of these also having ratified it. The treaty goes into effect once 50 UN member states have ratified it. None of the nuclear-armed states supports the treaty, and they did not participate in negotiating it.

Recognizing the opposition of nuclear-armed states, Beatrice Fihn, ICAN’s Executive Director, pointed to the power of international norms. She stated, “other prohibitions on weapons have shown… how international law and treaties and norms do impact behavior even on states that do not sign the treaty. We’ve seen it from biological and chemical weapons, land mines, cluster munitions. As soon as there is a prohibition in place, the dynamics on this issue changes.” [at 4:12, audio available through approximately Nov. 4, 2017]

She is right. While treaty norms do not invariably take hold – such as the 1928 Kellogg-Briand Pact renouncing war – most often they do. Consider the United States and the Land Mine Treaty (1997) that Beatrice Fihn referred to, banning land mines. While the United States never signed the treaty, in September 2014, the U.S. State Department announced that the U.S. government was “aligning [its] anti-personnel landmine…policy outside the Korean Peninsula with the key requirements” of the Land Mine Treaty.

Or consider the Framework Convention on Tobacco Control (FCTC).  Again, the United States is not among the states party to the treaty, as 180 states and the European Union are. But consider this: one provision of the FCTC requires that tobacco product packages have warnings that cover at least 30% of the package, while states are encouraged to require warnings to cover 50% or more of the package. The U.S. Food and Drug Administration requires that cigarette warning labels cover the top 50% of the front and rear of cigarette packages, while a warning label on the addictiveness of nicotine must cover at least 30% of the display areas of packaging for other tobacco products, with a similar requirements for cigar packages. The influence of the treaty seems clear.

The power of FCTC norms has considerable significance even for states that are parties to the FCTC and legally required to follow its mandates. For with the treaty’s weak enforcement mechanisms, it may be the normative power of the treaty that is most powerful.  Since the FCTC came into force, more than 50 countries have promulgated comprehensive smoking-free legislation, more than 115 now require pictorial warning labels covering at least 30% of tobacco packaging, and at least 38 countries have comprehensive tobacco advertising and sponsorship bans.

Meanwhile, consider the influence of international human rights law, a more complex field, yet again the power of treaty norms is evident, with human rights now a ubiquitous feature of national constitutions, and setting standards not only for governments but also for businesses and other institutions. While human rights violations of all sorts continue to plague our planet, almost everywhere too people are asserting their rights. While national constitutions and law often featured rights even before the Universal Declaration of Human Rights and subsequent treaties, international law has particularly spurred greater national legal recognition and action for economic, social, and cultural rights, and for the rights of specific populations, such as people with disabilities.

The importance of international legal norms has special resonance for those of us working to achieve a Framework Convention on Global Health, a treaty that would create powerful norms based on the right to health and aimed at health equity, in such areas as accountability, participation, financing, and non-discrimination and substantive equality. The treaty to prohibit nuclear weapons demonstrates that ambitious treaties are still within reach. And whereas the most significant benefits of that treaty require action by the nine nuclear powers, in the case of the areas that the Framework Convention on Global Health would address, every country has the potential to do better.

So in selecting ICAN for the peace prize, the Nobel Committee chose well. We can only hope that the norms of the Treaty on the Prohibition of Nuclear Weapons take hold around the world before we witness the unthinkable.

Posted in Global Health, Human Rights, Tobacco; Tagged: , , , , , , , .


New Research Offers Progress Toward Detecting and Treating Ebola

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Last week, two scientific discoveries were announced that could lead to better and earlier treatments for persons with Ebola virus disease.

First, scientists at University of Texas Medical Center in Galveston have discovered a protein within the body’s immune system that plays a central role in Ebola infections. Ebola virus infections are known to cause severe disease because of the virus’s effect on an individual’s immune system. T-cells, a type of white blood cell that locates and destroys cells that are infected by viruses, are especially vulnerable to Ebola virus. In their study, scientists demonstrated that mice that were genetically engineered without the T-cell protein Tim-1 became less ill after becoming infected with Ebola virus, compared to unmodified mice.

Further research with immune cells donated from humans elucidated to the scientists that the Ebola virus binds to T-cells via the Tim-1 protein, and causes extensive inflammation that impedes the immune system. This inflammation has been linked to the severity of the disease, as well as the likelihood of death. One possible outcome of this study is to determine if treatments that block the Tim-1 protein would result in milder disease and fewer deaths due to Ebola.

Another discovery by researchers at Northumbria University in Newcastle has led to a new diagnostic platform for Ebola that is faster and safer. Previously, persons with Ebola-like symptoms would provide a blood sample that required evaluation by a highly-specialized laboratory, which would then require 5-8 hours for confirmation. This new diagnostic platform requires much less sample (approximately one drop of blood), and needs less than 70 minutes to complete.

This new technology will provide results that are comparable to previous, laboratory-based systems, and can be administered by persons with less training and for less cost. Additionally, this technology has broader applications, due to its use of genomic detection; future uses could include Zika, dengue, MERS, or other viruses, as well as parasitic or bacterial infections, such as malaria or meningitis.

It is not enough to focus Ebola research on vaccine development; a multi-pronged plan for research and development is necessary to not just prevent illness, but detect and treat illness.  Research efforts such as these in Galveston and Newcastle exhibit how the world is preparing for the next Ebola outbreak, as well as working towards defeating the disease.

Posted in Uncategorized; Tagged: .



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This blog post was co-authored by Natalie Dobek, a second-year law student at Georgetown Law and a research assistant at the O’Neill Institute.

In the United States, criminalizing HIV remains a way in which people with HIV are discriminated against. HIV criminalization refers to the unjust application of criminal laws to people living with HIV based solely on their HIV status. Currently, 33 states and 2 U.S. territories have HIV specific criminal laws that apply only to people living with HIV. Other states still use general criminal laws to prosecute people on the basis of HIV status. The Department of Justice’s position is that the best practice is for states to modernize their HIV criminal laws to match the current science on HIV transmission.


California HIV Modernization Bill Awaits Governor Signature

Iowa and Colorado have updated their HIV criminal laws in recent years, and California has taken steps in this regard.

A bill modernizing HIV criminalization was passed by the California State Legislature on September 11, 2017 and is now awaiting the governor’s signature. California currently has four HIV-specific criminal laws on the books. This includes making it a felony for people with HIV to donate blood, tissue, or, under specified circumstances, semen or breast milk and making it a felony punishable up to nearly a decade in prison for a person with HIV to engage in unprotected sex that exposes another to HIV. Under the existing law, actual transmission is not required, and someone can be convicted of a felony for activities that do not risk transmission of HIV, while all other diseases are misdemeanors.

SB 239 reduces the penalty for HIV from a felony to a misdemeanor. The reduction means the law does not treat HIV differently than other serious communicable diseases, thereby removing discrimination and stigma for people living with HIV. This step towards modernizing HIV laws in California would mean that the maximum penalty would go from years in prison to up to six months in jail.


Michael Johnson Enters No-Contest Plea, Sentenced to Ten Years in Prison

Missouri’s HIV criminalization statute is one example of an application of law based on alleged non-disclosure of HIV status prior to engaging in sexual conduct.

In July 2015, Michael Johnson, a college student athlete, was sentenced to 30 years under the Missouri statute. While disclosure of HIV status is an affirmative defense under the statute, it can be difficult for the defendant to prove in most instances.

In December 2016, the Missouri Court of Appeals threw out the original conviction due to a “fundamentally unfair” trial, and in September 2017, Michael pled no-contest to not disclosing his HIV-positive status to sexual partners and was sentenced to 10 years in prison.


Ohio Supreme Court to Decide First Amendment Challenge to HIV Criminal Law

Similar to the Missouri statute that Michael Johnson was prosecuted under, people living with HIV in Ohio must disclose their HIV status to sexual partners or face felony assault charges.

The Ohio Supreme Court is expected to rule this fall on a challenge to HIV criminalization in Ohio. Lawyers and advocates challenging the Ohio law say that it is unconstitutional because it is based on discrimination against people with HIV in violation of the Equal Protection Cause of the Fourteenth Amendment and does not take reflect the medical reality of HIV. They also argue this law violates the First Amendment “right to free speech” because it compels disclosure of an individual’s HIV status. Advocates stress that this law, and similar laws in other states such as the one Michael Johnson was prosecuted under in Missouri, discourage people from getting tested for HIV and perpetuate the false notion that HIV is a death sentence.


HIV Criminalization Advocacy Toolkits Released

The Center for HIV Law and Policy and the National LGBTQ Task Force have released advocacy toolkits that discuss the connections between HIV criminal law reform, decriminalization of sex work, and accessibility to safe syringes. Specifically, the toolkits discuss the ways HIV criminal laws target sex workers and people who inject substances. These toolkits outline steps advocates can take to work together with other stakeholders and organizations.


Looking Ahead

HIV criminal laws are based on outdated and inaccurate beliefs about the routes and risk of HIV transmissions. Such laws maintain misconceptions about risks for HIV transmission and increase stigma against people living with HIV. More than 300 people living with HIV have faced arrest or charges under HIV-specific laws in the United States since 2008. The need for reform and modernization of these state laws is essential to ensure undue burdens are not placed on individuals based on HIV status, and to break down barriers to testing, treatment, and disclosure of HIV status.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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