Update: On October 4, 2019, the Supreme Court announced it would hear arguments June Medical Services v. Gee, the case challenging Louisiana's TRAP law, this term. 

Abortion rights captured the nation’s attention earlier this year when seven states passed early abortion bans. With the changes in the Supreme Court, and President Trump’s promise to appoint justices that would overturn Roe v. Wade, the concern about whether these new abortion bans would be upheld by the Supreme Court understandably reached a fever pitch.

But banning abortion outright isn’t the only way to eliminate abortion access in a state.  For decades, anti-abortion politicians have been quietly trying to push abortion out of reach by passing abortion restriction on top of restriction.  The new Supreme Court term started this week, and several challenges to such restrictions are pending in the Supreme Court. The Court could thus issue a ruling that would affect the future of abortion access this year without ever taking up a case involving an outright abortion ban.

Many of the abortion restrictions passed in recent years are called Targeted Regulation of Abortion Providers (TRAP) laws. They serve no medical purpose, and are passed with the sole intention of making it difficult — if not impossible — for people to access abortion.  A TRAP case from Louisiana, brought by our colleagues at the Center for Reproductive Rights, is one of the cases that SCOTUS could take up this term.

The TRAP law in question in the Louisiana case requires doctors who work at abortion clinics to have admitting privileges at a local hospital. If it stands, it would shutter all the clinics in the state except for one.

A district court struck down the law after finding that it would serve no medical purpose and would decimate abortion access in the case. The state appealed, and the Fifth Circuit Court of Appeals upheld the law. While it agreed that the law had limited-to-no medical utility, the court inaccurately found that the law wouldn’t cause clinics to close.

If you are experiencing déjà vu, you are not alone.  In 2016, the Supreme Court heard Whole Woman’s Health v. Hellerstedt, and found that a nearly identical law in Texas, which also required abortion providers to have admitting privileges at a local hospital, served no medical purpose and would unnecessarily force clinics to close.  The Court ruled that the law was therefore unconstitutional. The Whole Woman’s Health decision should have controlled the outcome in the Louisiana case too, but the Fifth Circuit failed to follow it.

Louisiana is not alone in trying to use TRAP laws to effectively ban abortion.  In Kentucky, we represent the last abortion clinic in the state, EMW Women’s Surgical Center, in several lawsuits, including a challenge to a TRAP law that requires abortion facilities to have a written transfer agreement with a local hospital. EMW had a transfer agreement with a local hospital for years, but Governor Bevin’s administration rejected it because it was signed by the head of the OB/GYN department rather than the hospital’s CEO. To prevent the state from shutting EMW down and eliminating abortion access in Kentucky, we went to court.  The law was struck down after trial, but the state’s appeal is now pending in the Sixth Circuit Court of Appeals.

In Ohio, a TRAP law is also being used to quietly and gradually close abortion clinics.  The law creates a complicated obstacle course for clinics: it says surgical facilities must have a written transfer agreement with a hospital, but the state department of health can waive that requirement if the clinic has one or more backup doctors with hospital admitting privileges.  The health department previously said that two backup doctors are insufficient for a waiver, and have arbitrarily demanded three instead.  Now – for no medical reason – they are requiring four back-up doctors. In states where doctors are subject to harassment for simply being associated with abortion access, finding that many back-up doctors can be next to impossible.

In Missouri, the state’s last clinic is facing a similar fight.  Earlier this year, the health department threatened to shut down that clinic, which is a Planned Parenthood affiliate, over disputes about its license. Planned Parenthood’s lawyers ran to court, and were able to get a court order prohibiting the state from closing the clinic—for now.

These states have followed up their restrictive TRAP laws with legislation that effectively bans abortion (although none are currently in effect). The agenda of these anti-abortion politicians is clear: TRAP laws have nothing to do with public safety, and everything to do with hostility to abortion. They are part of a strategy to do anything that eliminates abortion access.         

As the Supreme Court starts its new session this week, all eyes should be on the Louisiana case.  If the Court allows the Louisiana law to take effect, it will not only be devastating for people in Louisiana, it could also pave the way for courts to uphold other TRAP laws and abortion restrictions that will push abortion out of reach even more so than it already is.  TRAP laws hide their true intention under complex regulatory requirements that obscure what they are meant to accomplish, which is an end to abortion access. We must remain vigilant against all attempts to ban abortion, including both explicit as well as more subtle attempts.

Brigitte Amiri, Deputy Director, ACLU Reproductive Freedom Project     

This post is also published in Miami Herald and Florida Phoenix.

On Aug. 6, I and other representatives of the American Civil Liberties Union (ACLU) toured the Temporary Emergency Influx Shelter in Homestead, where undocumented migrant children had been detained.

We expected to see how the children were treated, in hopes of bringing some accountability to a place that has avoided public oversight.

But, according to staff members at the shelter, three nights before our arrival, between 1 and 7 a.m., the last of the children detained there – approximately 175 of them – were removed from the facility and sent elsewhere. They didn’t say where and gave no indication what would happen next to the kids.

The trauma and stress our government continues to subject these children to is outrageous. Some children were separated from families at the border; others endured traumatic journeys to the U.S. only to be swept into detention with no explanation of what is happening to them.

And then, the government abruptly transferred them to other locations in the middle of the night. Did senior Trump administration officials consider, or even care, how moving children this way would affect them?

The pre-dawn transfer of children out of Homestead is only the most recent indefensible incident at the facility.

Homestead has drawn national attention for being a privately operated prison for migrant children, for its enormous size, its lack of oversight, and for the inadequate conditions found there. At one point, it held some 2,700 kids.

Experts in child welfare agree that no child should be housed in a facility of that size – a place that is more like a prison than a home. They should especially not be housed there for months and months, as many children were.

A for-profit prison for migrant children in Miami-Dade County — particularly one that treats children so poorly and keeps them detained for far longer than needed — is a human rights catastrophe and a moral abomination.

Although Homestead is temporarily vacant, will the government send more migrant kids to replace those removed? It appears so.

Acting Director Jonathan Hayes, of the federal Office of Refugee Resettlement (ORR), recently said some 3,000 beds will remain ready in large influx centers, such as Homestead. The cost — to continue to operate a private prison-like detention center for children while it is currently empty— will be approximately $720,000 per day.

“Emergency influx shelters,” like Homestead, have operated with little accountability to the public, to Congress or to the law. Instead of operating according to state licensing standards, the facilities are administered according to contract terms not disclosed to the public.

In some instances, those standards are clearly inadequate.

On our tour we were told by a representative of the private company that operates the facility that of 130 teachers at Homestead, only 8 to 10 were certified. When asked why the company does not require teacher certification, she replied that they comply with ORR contract terms regarding the qualifications for teachers. But just what are those terms, and why are they so low? The public has not been told.

Is the Homestead facility complying with the ORR policy on the reporting of sexual abuse? We don’t know because ORR has failed to provide basic information to us or Congress on that policy. In fact, we don’t know the contract standards for any of the basic care and treatment of children the shelter is responsible for.

Homestead has cost taxpayers $33 million or $720,000 per day, in the weeks since it has stopped sheltering children. It is now on what is called “warm status,” which means it is prepared to receive children at any time — and likely will house children again starting this fall.

We must fight vigorously against the re-opening and new construction of mass detention centers for children, which will psychologically harm them. Floridians should make it clear that they oppose them. Local elected officials, especially in Miami-Dade County, must champion that fight.

Under public pressure, federal officials have recently changed policies to expedite the release of children to appropriate sponsors and significantly decrease the average length of time children spend in ORR custody. We must keep up that pressure.

In addition, we must pressure the federal government to abandon mass detention sites and instead work with nonprofit providers to establish small, state-licensed, permanent shelters and care programs, with established models of family-like and trauma-informed foster care, driven by the best interests of the child. These shelters are more accountable, transparent, and appropriate for the care of children.

And while we advocate for these reforms, we must continue to make it loud and clear that policies that allow for separating children from their families or detaining children for long periods of time are unacceptable and that we will not stand for it.

Cruelty is not an immigration policy.

The continued existence of the Homestead detention facility and others like it brings shame to our state and our nation.

Our government must do better. Our humanity demands it.

A version of this post is published in Tampa Bay Times.

Floridians believe in second chances and support criminal justice reform.

For evidence, look at the last election where over 60 percent of voters supported restoring voting rights to returning citizens after they complete their sentence, excluding those convicted of murder and felony sexual offense.

More than 60 percent of Floridians also supported changing the state constitution to allow criminal justice sentencing reforms to be applied to people currently incarcerated, not just those sentenced in the future.

Polls conducted by conservative and progressive pollsters have shown a clear majority of voters support common-sense reforms like providing non-violent drug offenders with substance abuse treatment, instead of multi-year or multi-decade prison sentences, and increasing mental health services, educational programming, and vocational training to ensure that individuals are able to successfully reintegrate in their communities and become productive citizens once released from prison.

In addition to the statistical evidence, I see in my daily life that Floridians of all ages, races, religions, genders, and geographies support second chances and the basic principles that seem to have been lost on our legislators. For example, possession of one ounce of marijuana should not result in up to five years in prison, and Black people should not get longer sentences than white people who commit the same offense in the same city with similar criminal records.

As I meet with directly impacted people, law enforcement officials, faith and business leaders across the state, most agree that incarcerated Floridians should be able to reduce their sentences through good behavior, completion of education or job training courses, or by performing an outstanding deed, such as saving a life of a fellow inmate or guard. Everyone seems to agree that we need to expand these rehabilitative opportunities and reward participation so that individuals will be better able to be productive citizens once released.  However, Florida Statutes currently arbitrarily place a 15-percent limit on the amount of time one can earn off their sentence for good behavior and engaging in such programming.  

The Florida Legislature passed a criminal justice reform package earlier this year that in small ways amended some of the most outdated criminal statutes (e.g., it made it a misdemeanor to steal something over $300, whereas previously it had been a felony; and, made it less burdensome for individuals to obtain some occupational licenses upon release from prison). Some legislators and reporters have called this the “Florida First Step Act,” after the federal First Step Act, passed by Congress and signed by President Donald Trump in December. 

But if the goal is to tackle Florida's mass incarceration crisis, equating Florida’s bill with the national measure is a major overstatement. The federal First Step Act freed more than 3,000 from prison and halfway houses across the country. This will result in a one-percent drop in the federal prison population. In addition, the federal First Step Act invests millions of dollars into reentry support, reduces racial disparities among those incarcerated, allows incarcerated people to take more time off their sentence through positive behavior, and expands the types of serious and debilitating illnesses that could allow  people to complete their sentences in their communities.

I think it's wrong to call Florida's modest reform by the name of the First Step Act when it invests zero dollars in reentry, gets zero people out of prison, and has no impact on racial disparities that have resulted in a much higher percentage of Black Floridians being incarcerated than white Floridians. It is smart policy to champion reforms that reduce recidivism  racial disparities.

Here are three common-sense reforms all Floridians should get behind:

1. If incarcerated people earn time off their sentences for good behavior and engaging in rehabilitative programming, let them use it. Don't arbitrarily cap the time a person can use toward their sentence at 15 percent. We should be encouraging, incentivizing, and rewarding good behavior and participation in self-betterment programs, not limiting it.  
2. Decriminalize possession of small amounts of marijuana. Last year, over 40,000 Floridians - disproportionately young people and people of color - were arrested for possessing less than one ounce of marijuana.
3. Ensure that individuals that are arrested are not locked up in jail pre-trial simply because they can’t afford bail. It is unjust and inhumane to keep people who are not a flight risk and do not pose a risk of physical harm to others separated from their families, their jobs, and their communities simply because they don’t have enough money to post bail.

In addition, Florida often sentences people to life in prison, even though their offenses did not cause loss of life or even injury to victims. Sentencing individuals to decades of prison when no one was physically harmed, with no chance of release through rehabilitation, will cost hundreds of thousands of dollars per inmate and is simply wrong. That needs to change.

These reforms — and other common-sense fixes — have been successfully implemented in other states. By following their example, members of the Florida Legislature and the governor could help end the state’s mass incarceration crisis.