Texas Deputies and S.B. 8

If you’re like the rest of the United States, then you are aware of the recent attempts to restrict the right to abortion pre-viability — a right affirmed by the Supreme Court in Planned Parenthood v Casey., 505 U.S. 833. Despite the holding in Planned Parenthood, States continue to pass legislation restricting abortion. In some States, these attempts are no more than a brazen attempt to ban nontherapeutic pre-viability abortions.

By the end of 2021, some fifteen States had passed legislation that banned non-therapeutic pre-viability abortions, commonly referred to as “Heartbeat bills.” (As of this writing, the states are Alabama, Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee, and Texas.) Though neither the progenitor nor the ultimate occurrence, S.B. 8, passed by Texas’s legislature and signed into law by Governor Abbott, has created rather significant waves in the legal landscape. Perhaps predictably, other States have emulated Texas’s approach, an approach that some commentators call the most restrictive abortion legislation to be passed post-Roe v. Wade (410 U.S. 113). A quick perusal of one’s favorite internet search engine will reveal the myriad commentary discussing the ways in which Texas and other States have been ingeniously skirting the dictates of the Supreme Court.

So, what is it that makes Texas’s legislation so newsworthy? Truly, it is not the restrictions that Texas has imposed that makes this law exceptional. After all, States have been passing restrictions on abortion long before the right was recognized by the Supreme Court. It is, also, not the fact that Texas is attempting to make it impossible for women, other than victims of rape and incest, to obtain an abortion once a heartbeat is detected; Texas is hardly novel in its endeavors in this area. What makes Senate Bill 8 so exceptional is its novel enforcement scheme.

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“Are You a Foreign Exchange Student?” and Other Microaggressions in the Legal Clinic

word cloud of words related to microaggressionsLast year, I watched as a law student was introduced to a lawyer volunteering at the legal clinic. The lawyer was a white man in his 60s. The student was a woman of color in her 20s, and she was wearing hijab. I happen to know that both people have hearts of gold and come to the legal clinic with a desire to help and to give their time and talents selflessly.

Nonetheless, upon being introduced, the lawyer’s first words to the law student were: “It’s nice to meet you. Are you a foreign exchange student?” The student looked confused and embarrassed as she replied, “No. I grew up here in Milwaukee.”

A similar incident happened recently when a white lawyer asked a student of color where he was born and whether he had voting privileges. Again, the student in question replied that he was born and raised in the United States.

Yet another time, a white lawyer sat down at a table with a student of color: “What can we help you with at the clinic today?” The underlying assumption was that the student must be a client.

I also remember a moment when a white lawyer worked with a Latinx student for an entire shift and remarked at the end, “You are so articulate.” Why would this be mentionable? This is a student who has a college degree, has been admitted to law school, and will have a law degree in a few years.

The same comments would not have been made to white students volunteering in the clinic.

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Goodbye, RBG

The actual Justice GinsburgShe stood, at best, five feet, one inch tall. But as she got older, she looked shorter—age and frailty bending her small frame forward.

Even so, she was larger than life.

Now, if had he known her, Shakespeare surely would have penned these words for her: “Though she be but little, she is fierce.”

Most of you already know who “she” is. “She” is Justice Ruth Bader Ginsburg, and tonight, she died at the age of 87. She was a three-time cancer survivor. But a survivor, she was.

Cornell University had admitted her as an undergraduate, and she started classes mere months after her mother died. She ended up the highest-ranking female student in her class. And, during her first year of law school at Harvard as one of only nine women in a class of 500 men, she, the mother of a toddler, did her own studying and typed up notes for her husband Marty, a second-year law student who was undergoing treatment for testicular cancer. She juggled parenting a small child, pursuing her own rigorous studies, and managing her husband’s studies. When Marty graduated from Harvard Law and moved to New York for work, she followed, transferring to Columbia Law School. And ended up tying for first in her graduating class.

Considering her class rank and her achievements at two renowned law schools, you’d think she’d have no trouble finding a job. But you’d be wrong. As I’ve heard her say, she had three strikes against her: she was Jewish, she was a woman, and she was a mother. Fortunately, then, because no law firm would hire her, she eventually ended up working for the ACLU as a founding member of the ACLU’s Women’s Rights Project. There, she was the architect of the litigation strategy that chipped away at laws that discriminated on the basis of sex. In her view, neither women nor men should be constitutionally bound by societal roles made legal based on what “women” or “men” should be.

Only she never was able to convince the Court that sex discrimination cases should receive strict scrutiny, like other suspect classifications.

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