Alabama Supreme Court Decision Raises Questions About the Future of Fertility Care

By: Cate Bikales

Edited by: Isabella Canales and Isabel Gortner

Note: This article was written prior to Mar. 6, when Alabama’s Republican governor Kay Ivey signed a bill into law that aims to protect IVF patients and providers from the legal liability raised by the state Supreme Court’s ruling that frozen embryos are considered children. The following day, Alabama clinics resumed IVF treatment. 

An Alabama Supreme Court ruling in mid-February that frozen embryos created through in vitro fertilization (IVF) are considered children under state law is already impacting fertility care across the state and could have detrimental impacts on women’s health care nationwide.    

Just days after the decision, three IVF-providing clinics in the state suspended services as they grappled with the potential legal repercussions of the decision. [1] 

The issue made its way to Alabama’s high court after three families sued a fertility clinic when an intruder removed the plaintiffs’ frozen embryos from a cryogenic nursery and dropped them on the floor, destroying the embryos. The families sued for wrongful death under the state’s Wrongful Death of a Minor Act. [2] “Unborn children are ‘children’ under the Act, without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in the majority opinion issued on Feb. 16. [3]  

In a post-Roe world filled with uncertainty about women’s rights, many are left wondering whether this decision means the right to fertility care will be the next to go. 

Indeed, the majority decision cited anti-abortion language that was added to the state constitution in 2018 to justify the ruling: “It is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” [5] Chief Justice Tom Parker’s concurring opinion reflected a similar sentiment, while also referencing his religious beliefs to back up his pro-life stance. “Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory,” he wrote. [6] 

Abortion is currently prohibited at all stages of pregnancy in Alabama. [7] White House press secretary Karine Jean-Pierre said that the ruling is exactly the “type of chaos” the Biden Administration expected when the Supreme Court overturned Roe v. Wade in 2022, which “paved the way for politicians to dictate some of the most personal decisions families can make.” [8] In his dissenting opinion, Justice Greg Cook argued that no court anywhere in the country has reached the conclusion the majority reaches, adding that it “almost certainly ends the creation of frozen embryos through [IVF] in Alabama.” [9]

The University of Alabama Birmingham Health System, which includes the largest hospital in the state, was the first to announce its decision to suspend treatment following the ruling. Alabama Fertility and the Center for Reproductive Medicine at Mobile Infirmary — the clinic sued in the court case — quickly followed. [10] “We have made the impossibly difficult decision to hold new IVF treatments due to the legal risk to our clinic and our embryologists,” Alabama Fertility said in a statement on social media on Feb. 22.  “[We] will not close. We will continue to fight for our patients and the families of Alabama.” [11]

A recent Pew Research survey found that 42% of American adults say they have used, or know someone who has used fertility treatments. [4] During IVF, mature eggs are surgically removed from the ovary and fertilized within a lab. The fertilized egg, called an embryo, is then implanted into the uterus. Unused embryos can be frozen for later use or discarded. [12] While the Alabama decision does not make IVF illegal, it does bring up many questions. How can IVF continue if it is illegal to destroy an embryo? Even if IVF does continue, it is likely costs will increase significantly, and access will decrease. [13] 

“This ruling has profound implications far beyond Alabama’s borders,” the advocacy group RESOLVE: The National Infertility Association said in a statement on social media. “Every American who wants or needs access to family building options like IVF should be deeply concerned about this development and the precedent it will set across the country.” [14] 

However, recent efforts to condemn the Alabama ruling by both political parties show that there may be hope for the future of fertility care. Many Republican senators, particularly those running for re-election this year, are urging lawmakers and candidates to express support for IVF. [15] Former President Donald Trump also expressed an opinion in favor of IVF on Truth Social: “Like the OVERWHELMING MAJORITY of Americans, I strongly support the availability of IVF for couples who are trying to have a precious baby.” [16]

Republican presidential candidate Nikki Haley is one of few Republicans who have spoken openly in support of the Alabama decision, saying that “embryos, to me, are babies.” [17] 

Leaders in Alabama, including Gov. Kay Ivey (R), say they are working to defend and protect access to IVF in the state. “The Legislature will soon consider a solution that preserves our Alabama values by empowering IVF clinics to continue assisting couples in bringing new life into the world,” said House Republican Speaker Nathaniel Ledbetter. [18] 

Until that clarification comes, IVF patients and providers will continue to be left in the dark about the future of fertility care in Alabama and beyond.

Notes:

1. Bendix, Aria. “Three Alabama clinics pause IVF services after court rules that embryos are children.” NBC News, February 21, 2024. https://www.nbcnews.com/health/health-news/university-alabama-pauses-ivf-services-court-rules-embryos-are-childre-rcna139846. 

2. LePage v. Center for Reproductive Medicine, P.C.

3. LePage v. Center for Reproductive Medicine, P.C., Alabama Supreme Court (2024) (ruling) https://publicportal-api.alappeals.gov/courts/68f021c4-6a44-4735-9a76-5360b2e8af13/cms/case/343D203A-B13D-463A-8176-C46E3AE4F695/docketentrydocuments/E3D95592-3CBE-4384-AFA6-063D4595AA1D. 

4. Carolina Aragão and Isabel Goddard. “A growing share of Americans say they’ve had fertility treatments or know someone who has.” Pew Research Center, September 14, 2023. https://www.pewresearch.org/short-reads/2023/09/14/a-growing-share-of-americans-say-theyve-had-fertility-treatments-or-know-someone-who-has/. 

5. LePage v. Center for Reproductive Medicine, P.C., Alabama Supreme Court (2024) (ruling)

6. LePage v. Center for Reproductive Medicine, P.C., Alabama Supreme Court (2024) (ruling)

7. “Alabama,” Center for Reproductive Rights, Accessed February 23, 2024, https://reproductiverights.org/maps/state/alabama/#:~:text=On%20June%2024%2C%202022%2C%20Alabama,%C2%A7%2026%2D23H%2D4.

8. Chandler, Kim. “Warnings of the impact of fertility treatments in Alabama rush in after frozen embryo ruling.” AP News, February 21, 2024. https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca. 

9. LePage v. Center for Reproductive Medicine, P.C., Alabama Supreme Court (2024) (ruling)

10. Bendix, Aria. “Three Alabama clinics pause IVF services after court rules that embryos are children.” NBC News, February 21, 2024. https://www.nbcnews.com/health/health-news/university-alabama-pauses-ivf-services-court-rules-embryos-are-childre-rcna139846. 

11. Alabama Fertility Specialists, “Dear patients of AFS…,” Facebook, February 22, 2024, https://www.facebook.com/alabamafertility/posts/pfbid037BWz6srp8KUT44H6nDrXrZ8ycKm5Vny9PzuYh8dzfoXd5KBqPaYgug2YURWFhfDHl. 

12. “In vitro fertilization (IVF),” Mayo Clinic, Accessed February 23, 2024, https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716#:~:text=During%20in%20vitro%20fertilization%2C%20eggs,into%20the%20uterus%20(C). 

13. Millhiser, Ian. “The Alabama Supreme Court opinion holding that embryos are children, explained,” Vox, February 20, 2024. https://www.vox.com/2024/2/20/24078513/supreme-court-alabama-ivf-roe-wade-dobbs-abortion-child-embryo. 

14. RESOLVE (@resolveorg), “The Alabama Supreme Court recently ruled…,” Instagram, February 19, 2024, https://www.instagram.com/p/C3iDMh_uguO/?hl=en&img_index=4. 

15. The Editorial Board. “IVF, Alabama, and the Dobbs Ruling,” Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/ivf-alabama-supreme-court-roe-v-wade-dobbs-abortion-6c0ceaaf. 

16. Megan Messerly and Jessica Piper. “Trump says he supports IVF after Alabama court decision,” Politico, February 23, 2024. https://www.politico.com/news/2024/02/23/trump-says-he-supports-ivf-after-alabama-court-decision-00142994 

17. Alex Rhoades and Ali Vitali. “Nikki Haley sides with Alabama Supreme Court on IVF ruling: 'Embryos, to me, are babies',” NBC News, February 21, 2024. https://www.nbcnews.com/politics/2024-election/nikki-haley-sides-alabama-supreme-court-ivf-ruling-embryos-are-babies-rcna139819. 

18. The Editorial Board. “IVF, Alabama, and the Dobbs Ruling,” Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/ivf-alabama-supreme-court-roe-v-wade-dobbs-abortion-6c0ceaaf. 

Bibliography:

“Alabama,” Center for Reproductive Rights, Accessed February 23, 2024, https://reproductiverights.org/maps/state/alabama/#:~:text=On%20June%2024%2C%202022%2C%20Alabama,%C2%A7%2026%2D23H%2D4.

Alex Rhoades and Ali Vitali. “Nikki Haley sides with Alabama Supreme Court on IVF ruling: 'Embryos, to me, are babies',” NBC News, February 21, 2024. https://www.nbcnews.com/politics/2024-election/nikki-haley-sides-alabama-supreme-court-ivf-ruling-embryos-are-babies-rcna139819. 

Azeen Ghorayshi and Roni Caryn Rabin. “Alabama Rules Frozen Embryos Are Children, Raising Questions About Fertility Care,” The New York Times, February 20, 2024. https://www.nytimes.com/2024/02/20/health/ivf-alabama-abortion.html. 

Bendix, Aria. “Three Alabama clinics pause IVF services after court rules that embryos are children.” NBC News, February 21, 2024. https://www.nbcnews.com/health/health-news/university-alabama-pauses-ivf-services-court-rules-embryos-are-childre-rcna139846. 

Carolina Aragão and Isabel Goddard. “A growing share of Americans say they’ve had fertility treatments or know someone who has.” Pew Research Center, September 14, 2023. https://www.pewresearch.org/short-reads/2023/09/14/a-growing-share-of-americans-say-theyve-had-fertility-treatments-or-know-someone-who-has/. 

Chandler, Kim. “Warnings of the impact of fertility treatments in Alabama rush in after frozen embryo ruling.” AP News, February 21, 2024. https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca. 

“In vitro fertilization (IVF),” Mayo Clinic, Accessed February 23, 2024, https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716#:~:text=During%20in%20vitro%20fertilization%2C%20eggs,into%20the%20uterus%20(C). 

Megan Messerly and Jessica Piper. “Trump says he supports IVF after Alabama court decision,” Politico, February 23, 2024. https://www.politico.com/news/2024/02/23/trump-says-he-supports-ivf-after-alabama-court-decision-00142994 

Millhiser, Ian. “The Alabama Supreme Court opinion holding that embryos are children, explained,” Vox, February 20, 2024. https://www.vox.com/2024/2/20/24078513/supreme-court-alabama-ivf-roe-wade-dobbs-abortion-child-embryo. 

Moniuszko, Sara. “Alabama court ruled frozen embryos are children. Experts explain potential impacts to IVF treatment,” CBS News, February 21, 2024. https://www.cbsnews.com/news/alabama-frozen-embryos-children-experts-ivf-fertility/.

Shoshana Dubnow and Stephanie Sy. “How an Alabama Supreme Court ruling that frozen embryos are children impacts IVF,” PBS, February 21, 2024. https://www.pbs.org/newshour/show/how-an-alabama-supreme-court-ruling-that-frozen-embryos-are-children-impacts-ivf.

The Editorial Board. “IVF, Alabama, and the Dobbs Ruling,” Wall Street Journal, February 23, 2024. https://www.wsj.com/articles/ivf-alabama-supreme-court-roe-v-wade-dobbs-abortion-6c0ceaaf. 

Weixel, Nathaniel. “How Alabama’s frozen embryo decision is shaking the nation: What you need to know,” The Hill, February 21, 2024. https://thehill.com/policy/healthcare/4481856-how-alabamas-frozen-embryo-decision-is-shaking-the-nation-what-you-need-to-know/. 

Edward Blum’s Staunch Campaign Against Affirmative Action

By: Sari Richmond

Edited by: Jack Pacconi and Samantha Yip

Edward Blum’s recent and most notable victory in his campaign against race-based considerations, the 2023 Supreme Court ruling against affirmative action in higher education, brought many to question what sector of life he will target next. Blum, a conservative litigator, has recently garnered attention for his formation of the group Students for Fair Admissions, which won the landmark affirmative action case against Harvard and the University of North Carolina.[1] This victory comes after decades of Blum filing cases targeting a range of topics from voting rights and electoral districts to affirmative action in education. 

In 1990, when Blum first attempted to vote in Houston, Texas after moving into the city with his wife, he was met with no republican option, and then the realization that the Republican Party had not provided a candidate to challenge the Democratic incumbent.[2] After being informed that he resided in a majority-minority district by the Republican Party of Houston, Blum lost the congressional district election to a Black incumbent two years later. While campaigning for this election, Blum discovered that neighborhoods in his district had been intentionally drawn to enhance the weight of minority votes. Blum’s goal then shifted; he enacted a lawsuit against the state of Texas and successfully assembled a legal team with the goal of proving unconstitutional gerrymandering.[2] After this, Blum filed similar lawsuits in states like New York, Virginia, Florida, and others to eliminate race considerations in electoral redistricting. Keeping the same legal team he had assembled for the first suit in Texas, Blum saw opportunities to expand his agenda into education when his alma mater, the University of Texas Austin, proposed race and ethnicity as a factor in admission consideration in 2003. Hoping to replicate the same success he had found in the Supreme Court with his congressional redistricting suits, Blum began searching for potential plaintiffs to file suit against the University of Texas for violating the equal protection clause.[2] Abigail Fisher, a white, legacy applicant who was denied admission, shared Blum’s inclination that the University’s race-neutral auto-admit practice for the top 10% of public high school students in Texas was sufficient to encourage diversity. However, the Supreme Court ruled in 2013 that colleges retained the right to consider and actively pursue diversity as an educational interest.[2]

Blum’s strategy of using litigation to enact social change and the use of test cases–cases meant to set a precedent or alter standards–has been used before with starkly different intentions. The National Association for the Advancement of Colored People (NAACP) began to challenge racial inequalities in the 1930s and 1940s using test cases and a legal team including top minds of the time Charles Hamilton Houston and Thurgood Marshall.[3] In order to target areas of life like education and voting, the NAACP carefully chose litigants and respected plaintiffs who could publically appeal to the goals of the cases and personally testify to the effects of inequality on their lifestyle. Extremely similar to this practice is Blum’s careful selection of Asian American plaintiffs in the 2023 Students for Fair Admissions suit after his white plaintiff did not produce the desired results in his earlier University of Texas suit.[2,3] While the NAACP achieved great success through this strategy earlier in the 20th century, Blum is also finding success using the same pathway of test cases to undo many instances of monumental civil rights legislation. For example, in the 2013 Shelby County v. Holder decision, Blum effectively challenged Section 5 of the Voting Rights Act, a section dedicated to federal oversight of state and local elections ensuring the absence of voter discrimination based on race. Since the successful dismantling of Section 5, partisan gerrymandering rates have risen as states are no longer required to report voting related changes to the Justice Department.[3,4]        

Despite his initial loss in the education sector, Blum was not discouraged and immediately began his search for plaintiffs denied admission to Harvard College, the University of North Carolina-Chapel Hill, and the University of Wisconsin Madison. As mentioned, Blum sought out Asian-American plaintiffs earnestly, specifically targeting universities that had been rumored to have Asian quotas or holistic admission considerations that included race or ethnicity.[3] Critics have pointed out that Blum’s attitude towards the selection of Asian American plaintiffs takes advantage of the model minority myth and purposefully forces a narrative of sympathetic victims who are unfairly penalized by affirmative action practices. 

After forming Students for Fair Admissions, Blum began to build a case based on the principle that higher education institutions could use race-neutral policies to encourage diversity including a focus on socio-economic status or eliminating legacy preference.[5] Leaning into the stance that affirmative action is a constitutional violation of the equal protection clause which “prohibits distinctions in law by race or color,” Blum and his team argued the case in front of the Supreme Court in October 2022.[6,7] The schools countered with the idea that without programs like affirmative action, achieving student bodies that reflect the diversity of America would be near impossible due to the effects of systemic racism and other trends resulting from long-standing racial discrepancies in American law and practices. Blum himself does not believe in systemic racism, saying in a New York Times interview, “No, I do not believe in it. What your question implies is that in the American DNA there is racism. It was founded upon racism. It is part of what this country is. I reject that.”[1]

After a 6-3 ruling from the Court in 2023 favoring the Students for Fair Admissions, universities and colleges are no longer allowed to consider race in the admissions process.[8] Despite an observed drop in minority enrollment for institutions where affirmative action processes have been eliminated, many still argue that race-neutral considerations carry the same effectiveness as affirmative action policies. However, many institutions have already begun tweaking admissions protocols to account for this change. Schools are not banned from considering how race or ethnicity has impacted an applicant’s life or inviting applicants to write about such topics when they apply.[8]

Blum’s victory in the 2023 affirmative action ruling has prompted him to expand his agenda into other areas. He plans to challenge some corporate boards who exhibit racial preferences and other areas associated with higher education including internships, scholarships, and research grants that are in any way racially exclusive.[1,8] Ironically, eliminating affirmative action-type programs in the corporate realm would negatively impact Asian Americans, the very demographic that Blum used to win the 2023 case. Despite an overrepresentation of Asian Americans in the technology industry, they are marginally underrepresented in senior leadership positions due to anti-Asian bias and the effects of the model minority myth. Most technology companies lack any affirmative action-type programs currently, leading to largely white majority executive boards–despite an increasing number of minorities entering the workforce due to affirmative action programs in higher education for the past few decades.[9]

The American Alliance for Equal Rights (AAFER), another group founded by Blum, has already begun its challenge on scholarship and grant-like programs. AAFER is suing The Fearless Fund, which offers four $20,000 grants a year to Black women to fund start-ups. The Fearless Fund is being sued for violation of the Civil Rights Act of 1866, legislation that was originally written to allow African Americans to enter contracts they had previously been barred from. Many venture capital funds target investments to certain demographics and focus on uplifting these minority groups in the American business sphere. Blum claims that because a fund targeting only white men would be unfair and illegal, then other groups that cater to certain demographics must be held to the same standard.[10] 

Edward Blum’s role in the agenda to eliminate affirmative action and similar practices in higher education, voting, and workplaces is undeniable. For decades, Blum has been working to use litigation to undo policies put in place to inject diversity into spaces commonly dominated by Caucasian males. Through using the same legal pathways used by civil rights groups like the NAACP in the past, he has successfully changed precedent in race-related considerations of things like higher education admission and voting districting practices. While some of these victories may seem small, the future implications of Blum’s agenda against affirmative action and similar policies should be considered, as these policies’ effects on diversity are already being eliminated.

Notes:

1. Garcia, Lulu. 2023. “He Worked for Years to Overturn Affirmative Action and Finally Won. He's Not Done.” The New York Times. 

2. Burns, Hilary. 2023. “Meet Edward Blum, the man behind the Harvard affirmative action case.” Boston.com. 

3. Hayter, Julian M. 2023. “Edward Blum's crusade against affirmative action has used the legal strategy developed by civil rights activists.” The Conversation. 

4. “Shelby County v. Holder.” 2018. Brennan Center for Justice. 

5. Sherman, Mark. 2023. “Supreme Court live updates: Court ends affirmative action in colleges.” AP News. 

6. “20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023).” 2023. Supreme Court. 

7. “U.S. Supreme Court Ends Affirmative Action in Higher Education: An Overview and Practical Next Steps for Employers.” 2023. Sidley Austin. 

8. Totenberg, Nina. 2023. “Supreme Court reverses affirmative action, gutting race-conscious admissions.” NPR. 

9. Holloway, Kali. 2023. “Inside the Cynical Campaign to Claim That Affirmative Action Hurts Asian Americans.” The Nation. 

10. n.d. Wikipedia.

Bibliography:

n.d. Wikipedia. https://www.rollingstone.com/politics/politics-features/fearless-fund-vc-fund-edward-blum-affirmative-action-1234808930/?sub_action=logged_in.

Burns, Hilary. 2023. “Meet Edward Blum, the man behind the Harvard affirmative action case.” Boston.com. https://www.boston.com/news/the-boston-globe/2023/05/29/meet-edward-blum-the-man-behind-the-harvard-affirmative-action-case/.

Garcia, Lulu. 2023. “He Worked for Years to Overturn Affirmative Action and Finally Won. He's Not Done.” The New York Times. https://www.nytimes.com/2023/07/08/us/edward-blum-affirmative-action-race.html.

Hayter, Julian M. 2023. “Edward Blum's crusade against affirmative action has used the legal strategy developed by civil rights activists.” The Conversation. https://theconversation.com/edward-blums-crusade-against-affirmative-action-has-used-the-legal-strategy-developed-by-civil-rights-activists-215223.

Holloway, Kali. 2023. “Inside the Cynical Campaign to Claim That Affirmative Action Hurts Asian Americans.” The Nation. https://www.thenation.com/article/society/affirmative-action-asian-americans/.

“Shelby County v. Holder.” 2018. Brennan Center for Justice. https://www.brennancenter.org/our-work/court-cases/shelby-county-v-holder.

Sherman, Mark. 2023. “Supreme Court live updates: Court ends affirmative action in colleges.” AP News. https://apnews.com/article/supreme-court-affirmative-action-college-race-f83d6318017ec9b9029b12ee2256e744.

Totenberg, Nina. 2023. “Supreme Court reverses affirmative action, gutting race-conscious admissions.” NPR. https://www.npr.org/2023/06/29/1181138066/affirmative-action-supreme-court-decision.

“20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023).” 2023. Supreme Court. https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf.

“U.S. Supreme Court Ends Affirmative Action in Higher Education: An Overview and Practical Next Steps for Employers.” 2023. Sidley Austin. https://www.sidley.com/en/insights/newsupdates/2023/08/us-supreme-court-ends-affirmative-action-in-higher-education--an-overview-and-practical-next-steps.

Ecology of Prisons: How Environmental Justice Effects are Exacerbated in Prisons

By: Kunjal Bastola

edited by: Alexandra Dickerman and Alexandria Nagy

Prison ecology is a term used to describe the living conditions of prisoners as it relates to environmental and health issues. Many prisons are built on contaminated sites or landfills, creating detrimental living conditions for the inmates. Nearby contaminated sites often pollute the air and water of prisons, degrade sanitation levels, and expose inmates to harmful waste. Environmental justice already impacts low-income and Black, Indigenous, people of color (BIPOC) communities at a disproportionate rate, but in prisons, the effects are even more disastrous.[1] Because the current environment of prisons cultivates such a harmful environment for their inmates, the urgency of addressing prison ecology increases expediently with the worsening of environmental issues. 

A post published on the Prison Policy Initiative website in 2022 highlights, “one-third (32%) of state and federal prisons are located within 3 miles of federal Superfund sites, the most serious contaminated places requiring extensive cleanup.”[2] Additionally, according to the Environmental Protection Agency, a Superfund gives EPA the money and authority to clean up contaminated sites, highlighting the extent to which many of the sites that prisons sit on are considered to be the most contaminated places. [3] Essentially, the proximity of these prisons with contaminated waste sites exacerbates environmental justice effects for incarcerated people. 

Due to the government’s inaction surrounding this issue, prisoners have begun to protest their conditions. In 2018, lawyers from the Abolitionist Law Center filed a lawsuit against the Federal Bureau of Prisons on behalf of 21 federal prisoners across the country arguing against the proposed construction of a federal prison in Letcher Counter, Kentucky built on top of a former coal mine.[4] In 2022, another lawsuit was filed against the State of Alabama on behalf of prisoners at two Alabama prisons alleging that the state, along with the U.S. Department of Treasury, did not follow proper environmental processes, as outlined in the National Environmental Policy Act, before building two 4,000 bed “mega-prison” sites.[5] These are only a few of the issues regarding the hazardous living conditions of inmates that were brought to light through prisoner activism. 

With a lack of agency over their surroundings, prisoners are thrust into harmful environmental situations, which some argue constitutes “cruel and unusual punishment” as written in the Eighth Amendment.[6] The American Civil Liberties Union (ACLU), an organization that works to expand civil liberties, highlighted a few hazardous conditions, and cases that were tried, in which courts have found that the Eighth Amendment was violated in prisons, including the following: [7] 

• Defective plumbing (Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992)) [8] 

• Denial of adequate toilet facilities (Gates v. Cook, 376 F.3d 323, 340-41 (5th Cir. 2004))[9]

• Deprivation of basic sanitation (Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006))[10]

• Lack of drinkable water (Hearns v. Terhune, 413 F.3d 1036, 1042-43 (9th Cir. 2005))[11]

• Exposure to human waste (Gates v. Cook, 376 F.3d 323, 340-41 (5th Cir. 2004))[12]

The ACLU also notes instances in which courts decided that some of the above conditions in prisons did not constitute a violation of the Eighth Amendment. For instance, in Knop v. Johnson 977 F.2d 996, 1013 (6th Cir. 1992), the 6th Circuit ruled that the occasional use of non-flushable toilets did not violate the Eighth Amendment.[13] Also, in Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994), the 7th Circuit found that a 24-hour delay in providing requested hygiene supplies similarly did not violate the Amendment.[14] 

With environmental issues at stake all over the world, it is important to address those communities facing harmful environmental conditions. In prisons, living conditions for inmates reflect the dangers of neglecting a hazardous environment contributing to the detrimental lifestyles of a large population. As the government takes action to mitigate the adverse effects of environmental issues, it is important they also work to address those effects in prisons. 

Notes: 

1. “Investigation Reveals Environmental Dangers in America’s Toxic Prisons,” Equal Justice Initiative, July 16, 2017, Accessed December 13, 2023, https://eji.org/news/investigation-reveals-environmental-dangers-in-toxic-prisons/#:~:text=Nearly%20600%20federal%20and%20state,mile%20from%20the%20toxic%20site. 

2. Leah Wang, “Prisons Are a Daily Environmental Injustice,” Prison Policy Initiative, April 20, 2022, Accessed December 13, 2023, https://www.prisonpolicy.org/blog/2022/04/20/environmental_injustice/.

3. “Investigation Reveals Environmental Dangers in America’s Toxic Prisons,” Equal Justice Initiative, July 16, 2017, Accessed December 13, 2023, https://eji.org/news/investigation-reveals-environmental-dangers-in-toxic-prisons/#:~:text=Nearly%20600%20federal%20and%20state,mile%20from%20the%20toxic%20site.  

4. “What is Superfund?” Accessed December 13, 2023, https://www.epa.gov/superfund/what-superfund. 

5. Panagioti Tsolkas, “Prisoners File Unprecedented Environmental Lawsuit against Proposed Federal Prison in Kentucky,” Nation Inside, December 7, 2018, Accessed December 13, 2023,  https://nationinside.org/campaign/prison-ecology-project/posts/prisoners-file-unprecedented-environmental-lawsuit-against-proposed-federal-prison-in-kentucky/. 

6. Panagioti Tsolkas, “Alabama Prisoner File NEPA Lawsuit against New Prison Construction,” Nation Inside, July 11, 2022, Accessed December 13, 2023,  https://nationinside.org/campaign/prison-ecology-project/posts/alabama-prisoner-file-nepa-lawsuit-against-new-prison-construction/. 

7. “Know your rights: environmental hazards and toxic materials,” ACLU of Idaho, Accessed December 14, 2023, https://www.acluidaho.org/sites/default/files/wpsite/wp-content/uploads/2013/01/kyr_environmental_hazards_updated_apr10.pdf. 

8. “Know your rights: environmental hazards and toxic materials,” ACLU of Idaho, Accessed December 14, 2023, https://www.acluidaho.org/sites/default/files/wpsite/wp-content/uploads/2013/01/kyr_environmental_hazards_updated_apr10.pdf. 

9. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992).

10. Gates v. Cook, 376 F.3d 323, 340-41 (5th Cir. 2004).

11. Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006).

12.  Hearns v. Terhune, 413 F.3d 1036, 1042-43 (9th Cir. 2005). 

13.  Gates v. Cook, 376 F.3d 323, 340-41 (5th Cir. 2004). 

14.  Knop v. Johnson 977 F.2d 996, 1013 (6th Cir. 1992). 

15.  Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994). 

Bibliography: 

“Investigation Reveals Environmental Dangers in America’s Toxic Prisons.” Equal Justice Initiative. July 16, 2017. Accessed December 13, 2023. https://eji.org/news/investigation-reveals-environmental-dangers-in-toxic-prisons/#:~:text=Nearly%20600%20federal%20and%20state,mile%20from%20the%20toxic%20site.  

“Know your rights: environmental hazards and toxic materials.” ACLU of Idaho. Accessed December 14, 2023. https://www.acluidaho.org/sites/default/files/wpsite/wp-content/uploads/2013/01/kyr_environmental_hazards_updated_apr10.pdf. 

Leah Wang. “Prisons Are a Daily Environmental Injustice.” Prison Policy Initiative. April 20, 2022. Accessed December 13, 2023. https://www.prisonpolicy.org/blog/2022/04/20/environmental_injustice/.   

Panagioti Tsolkas. “Alabama Prisoner File NEPA Lawsuit against New Prison Construction.” Nation Inside. July 11, 2022. Accessed December 13, 2023.  https://nationinside.org/campaign/prison-ecology-project/posts/alabama-prisoner-file-nepa-lawsuit-against-new-prison-construction/.  

Panagioti Tsolkas. “Prisoners File Unprecedented Environmental Lawsuit against Proposed Federal Prison in Kentucky.” Nation Inside. December 7, 2018. Accessed December 13, 2023.  https://nationinside.org/campaign/prison-ecology-project/posts/prisoners-file-unprecedented-environmental-lawsuit-against-proposed-federal-prison-in-kentucky/.  

“What is Superfund?” Accessed December 13, 2023.  https://www.epa.gov/superfund/what-superfund.  

DC Statehood: An Imperative Step to Ensure Fair Political Representation for All Americans

By: Eliana Aemro Selassie

Edited by: Anna Westfall and Isabel Gortner

“End taxation without representation”, the iconic slogan that marks license plates in the District of Columbia, is among many tokens of advocacy for DC statehood. DC’s lack of statehood has been a contentious issue for DC residents, who lack adequate political representation, and for Congress, where debates continue on the constitutionality of admitting DC as the 51st state of the United States. DC residents pay more taxes per capita than any other state and DC’s population of over 700,000 outnumbers the populations of states like Wyoming and Vermont, but DC residents do not have fair representation in Congress. [1] The United States is the only nation in the world with a representative democracy that also restricts voting rights for its residents. [1] Advocacy for DC statehood has grown in recent years, as part of an effort to achieve fair representation for DC residents and several arguments have been put forward by civil rights activists and pro-statehood politicians justifying statehood. “No taxation without representation” was one of the key premises of the American Revolution and a major rationale for American independence, marking voting rights as an essential component of being a resident of the United States. [2] This begs the question: if DC residents have all the responsibilities of citizens, specifically taxation, and if the District has a population that outnumbers that of other states, why shouldn’t DC residents receive statehood and adequate political representation?

DC’s classification as a district rather than a state restricts the voting rights of DC residents who only have minimal representation in Congress, with only one representative in the House and no senators. DC’s Congressional representative, Eleanor Holmes Norton, does not have voting power like traditional representatives do but instead can participate in congressional committees and weigh in on issues proposed in Congress. DC also has 2 “shadow senators,” Paul Strauss and Mike Brown, who are not considered official senators and have no voting power but can advocate on behalf of DC residents on political matters. [3] As a result, DC residents lack the same amount of political representation that residents of all 50 states do, without a voice on congressional issues and representatives in Congress who can vote to induce political changes. DC’s local government also differs considerably from most states, since it is responsible for the functions of both state and city governments. DC is governed by a mayor and a city council of 13 members with the capacity to create DC’s legal codes, unlike states that have a governor and a state congress. DC’s city council also operates its public school system and police force, simulating the functions of city governments. [3] 

Despite these autonomous aspects of DC’s government, DC is still subject to Congressional approval for many major political decisions in the district. Congress has immense authority over DC’s budget, under the Home Rule Act which allows Congress the right to “review and nullify” any legislation created by the DC government. [4] This has been restrictive to the DC government on several occasions. A notable example is Congress’ persistent efforts to limit DC’s capacity to control and tax cannabis markets, despite cannabis being legal in DC since 2014. [4] Congress also blocked needle exchange programs from 1998-2007, preventing the allocation of important funding to address the HIV/AIDs epidemic in DC. [5] Furthermore, during the COVID-19 pandemic, DC was denied $775 million in emergency funds under the Coronavirus Relief Fund. DC was treated as a territory instead of a state, restricting access to federal resources for DC residents. [4]

These examples present the impacts of a lack of statehood on not only DC’s healthcare system but also on the DC government’s jurisdiction and capacity to provide vital resources and funding to its constituents. DC’s lack of statehood became especially controversial concerning DC’s jurisdiction over deploying the National Guard, which is the responsibility of state governors and the president in the event of emergencies. This became apparent during the Black Lives Matter movement in 2020, when President Trump deployed the National Guard in DC in June 2020 to suppress peaceful Black Lives Matter rallies, which many DC residents viewed as an invasive measure. Furthermore, during the January 6th insurrection, DC Mayor Muriel Bowser was unable to call in the National Guard to repress insurrectionists because DC is not a state and has no governor, a measure that called  DC’s lack of statehood into question as a safety issue. [4]

DC’s absence of statehood has also been considered a civil rights issue given DC’s large black population. [6] DC’s population is 47% black, demonstrating how a lack of voting rights plays a key role in restricting the voting rights of black Americans. This is part of a larger phenomenon of black disenfranchisement since the average black person in the US only has 75% of the voting representation of the average white person. [7] A number of civil rights activists have attributed the continued restriction of voting rights to DC residents throughout DC’s history as part of the systemic withholding of rights for black people. [8] If DC was admitted as the 51st state, it would be the only state where black people are not a minority and would make up nearly half the population, marking a potentially instrumental measure to improving the conditions of black Americans through increased voter representation. 

Statehood is primarily opposed by members of the Republican Party since DC’s predominantly liberal population would likely ensure 2 more democratic senators in Congress if it were to receive statehood. This view has been upheld by a number of Republicans, most notably Senate Minority Leader Mitch McConnell, who said “With two more liberal senators, we cannot undo the damage they’ve done”. [9] Many Republican politicians have contested DC statehood, arguing that it necessitates a constitutional amendment and opposes the initial intentions of the Framers when they designated DC as the capital of the United States. [6] DC’s lack of voting rights started in Article 1 of the Constitution which allowed Congress to create a “federal capital district”, where the Framers failed to provide voting representation for DC residents. The District of Columbia Organic Act of 1801 later gave Congress “jurisdiction” over DC territory and limited voting rights for DC residents. [4] Opponents of DC statehood rely on constitutionalist thinking to strike down DC statehood. 

However, several legal experts co-signed a letter in 2021 to Congress upholding DC statehood. Lauren Tribe of Harvard Law School and Caroline Frederickson of Georgetown Law School argued that the Constitution allows for new states to be admitted to the union, a practice that was commonly used in the late 19th century to admit Western territories to the union. [6] The letter was part of a growing effort among legal scholars to justify the rationality and constitutionality of DC statehood, particularly as the DC Admission Act was being considered in Congress. The Washington DC Admission Act passed through the House in 2020 and 2021, a political measure that would admit DC as the 51st state of the US. [4]  Under the DC Admission Act, the capital would be defined with federal buildings like the White House, the Supreme Court, and the Capitol included under federal sovereignty, while the rest of DC is considered a state. The Act failed to pass through the Senate, illustrating continued efforts to prevent the establishment of DC as a state. [6] Despite this failure, the growing amount of scholarship justifying statehood illustrates the faults in the arguments of its opponents, providing more rationale for DC’s admission as the 51st state. 

The importance of voting rights has been consistently emphasized throughout the history of the United States and its position as a representative democracy, making DC statehood a necessity to ensure the voting rights and accurate representation of all Americans are actively upheld. Leah Litman at the University of Michigan Law School said, “The normative reason for [DC statehood] is democracy”, arguing that all citizens deserve the right to fair representation under the democratic ideals of the United States. [6] Furthermore, DC statehood poses potential risks to the accessibility of DC residents to federal resources and the DC government’s ability to govern without intervention from Congress. DC statehood is also a civil rights issue, where restricting access to voting rights for the people of DC is effectively an additional barrier to equal voting rights for black residents of the United States. Overall, DC statehood is a political necessity to ensure DC residents have fair representation and access to federal resources as well as to maintain the voting rights that have been characterized as integral to the United States and its democratic ideals.

Notes: 

1. Government of the District of Columbia. DC Statehood. n.d. “About DC Statehood.” Accessed January 30, 2024. https://statehood.dc.gov/page/about-dc-statehood. 

2. NCC Staff. 2022. “On this day: “No taxation without representation!” | Constitution Center.” The National Constitution Center, October 7, 2022. https://constitutioncenter.org/blog/no-taxation-without-representation. 

3. Schultz, Kyley. 2021. “What does the constitution say about DC statehood? House latest.” WUSA9, January 18, 2021. https://www.wusa9.com/article/news/verify/is-washington-dc-a-city-or-a-state-does-dc-have-a-governor-explainer-and-fact-check/65-1f276d84-9d06-425b-9bf8-fa0743d0f0d2.  

4. Efrati, Maya, Lauren Eisen, and Ram Subramanian. 2022. “DC Statehood Explained.” Brennan Center for Justice, March 18, 2022. https://www.brennancenter.org/our-work/research-reports/dc-statehood-explained. 

5. Hauslohner, Abigail. 2015. “Study: Needle-exchange program leads to big drop in D.C. HIV infections.” Washington Post, September 3, 2015. https://www.washingtonpost.com/local/dc-politics/study-needle-exchange-program-leads-to-big-drop-in-dc-hiv-infections/2015/09/02/ce383e14-51a5-11e5-9812-92d5948a40f8_story.html. 

6. Sargent, Greg. 24. “The campaign for D.C. statehood just got a big boost.” The Washington Post, May 2021, 24. https://www.washingtonpost.com/opinions/2021/05/24/dc-statehood-constitutional-letter/?next_url=https://www.washingtonpost.com/opinions/2021/05/24/dc-statehood-constitutional-letter/. 

7. Government of the District of Columbia. n.d. “Why Statehood for DC | statehood.” DC Statehood. Accessed January 30, 2024. https://statehood.dc.gov/page/why-statehood-dc. 

8. Sommers, Kyla. 2021. “Perspective | The battle against D.C. statehood is rooted in anti-Black racism.” Washington Post, March 22, 2021. https://www.washingtonpost.com/outlook/2021/03/22/battle-against-dc-statehood-is-rooted-anti-black-racism/. 

9. Forgey, Quint. 2020. “'We will stand our post': McConnell defends GOP Senate, urges against D.C. statehood.” Politico, August 28, 2020. https://www.politico.com/news/2020/08/27/mitch-mcconnell-rnc-speech-404006. 

Bibliography:

Efrati, Maya, Lauren Eisen, and Ram Subramanian. 2022. “DC Statehood Explained.” Brennan Center for Justice, March 18, 2022. https://www.brennancenter.org/our-work/research-reports/dc-statehood-explained.

Forgey, Quint. 2020. “'We will stand our post': McConnell defends GOP Senate, urges against D.C. statehood.” Politico, August 28, 2020. https://www.politico.com/news/2020/08/27/mitch-mcconnell-rnc-speech-404006.

Government of the District of Columbia. DC Statehood. n.d. “About DC Statehood.” Accessed January 30, 2024. https://statehood.dc.gov/page/about-dc-statehood.

Government of the District of Columbia. n.d. “Why Statehood for DC.” DC Statehood. Accessed January 30, 2024. https://statehood.dc.gov/page/why-statehood-dc.

Hauslohner, Abigail. 2015. “Study: Needle-exchange program leads to big drop in D.C. HIV infections.” Washington Post, September 3, 2015. https://www.washingtonpost.com/local/dc-politics/study-needle-exchange-program-leads-to-big-drop-in-dc-hiv-infections/2015/09/02/ce383e14-51a5-11e5-9812-92d5948a40f8_story.html.

NCC Staff. 2022. “On this day: “No taxation without representation!” | Constitution Center.” The National Constitution Center, October 7, 2022. https://constitutioncenter.org/blog/no-taxation-without-representation. 

Sargent, Greg. 24. “The campaign for D.C. statehood just got a big boost.” The Washington Post, May 2021, 24. https://www.washingtonpost.com/opinions/2021/05/24/dc-statehood-constitutional-letter/?next_url=https://www.washingtonpost.com/opinions/2021/05/24/dc-statehood-constitutional-letter/.  

Schultz, Kyley. 2021. “What does the constitution say about DC statehood? House latest.” WUSA9, January 18, 2021. https://www.wusa9.com/article/news/verify/is-washington-dc-a-city-or-a-state-does-dc-have-a-governor-explainer-and-fact-check/65-1f276d84-9d06-425b-9bf8-fa0743d0f0d2. 

Sommers, Kyla. 2021. “Perspective | The battle against D.C. statehood is rooted in anti-Black racism.” Washington Post, March 22, 2021. https://www.washingtonpost.com/outlook/2021/03/22/battle-against-dc-statehood-is-rooted-anti-black-racism/.