Senate to vote on bid to rescind HHS mandate; Sebelius promises compromise plan 'soon'

From CatholicCulture.org:

Senate to vote on bid to rescind HHS mandate; Sebelius promises compromise plan 'soon'

February 29, 2012

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The US Senate is scheduled to vote March 1 on a measure that would repeal the Obama administration’s mandate that requiring contraceptive coverage in health-care programs.

The legislation, sponsored by Senator Roy Blunt of Missouri, takes the form of an amendment attached to an unrelated transportation bill. It is not expected to pass. Senate Majority Leader Harry Reid has agreed to schedule a vote promptly, saying that he hopes to “put this extreme and distracting proposal behind us.”

In a related development Kathleen Sebelius, the Secretary for Health and Human Services (HHS), has disclosed that her department will present “in the near future” the Obama administration’s proposal for an “accommodation” with religious institutions that object to the mandate. “We’ve begun outreach,” Sebelius said. “I have talked to Catholic health leaders, I’m reaching out to priests.”

The HHS Secretary did not indicate whether she has spoken with Catholic bishops. The leaders of the US bishops’ conference have disclosed that they were not consulted before the Obama administration originally unveiled its “compromise” proposal. Several political analysts have observed that the administration seems intent on creating divisions among American Catholics on the issue, forming alliances with liberal Catholics who are sympathetic to the Obama plan.

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• Senate to Vote Thursday on Repeal of President Obama’s Contraception Mandate (ABC)
• Kathleen Sebelius: Rule coming soon on contraception coverage (Politico)

Bishop Lori rips HHS mandate in House Judiciary Committee testimony

From CatholicCulture.org:

Bishop Lori rips HHS mandate in House Judiciary Committee testimony

February 29, 2012

From Our Store: The Documents of the Second Vatican Council: A Summary and Guide (eBook)

Testifying before the House Judiciary Committee on February 28, Bishop William Lori of Bridgeport blasted the absurdity surrounding the HHS contraception mandate.

“Ever since the mandate has been announced, fair is foul, and foul is fair,” he noted.

“First, ‘without change’ suddenly means ‘with change.’ On Friday, February 10, 2012, the Administration finalized--and I quote from the rule itself, ‘without change’--the interim final rule imposing the mandate, which was announced initially in August 2011. In fact, the February 10 action uses the phrase ‘without change’ four separate times … Despite this, a surprising number of those who objected vociferously to the August 2011 rule were suddenly and completely satisfied. Indeed, based on their reaction—rather than on the text of the rule itself—one could be forgiven the impression that there was a major change in the rule, rather than none at all.”

Bishop Lori continued:

The reason for this confusion is that the finalized rule also announced what it described as an “accommodation.” But this “accommodation” would not change the scope of the mandate and its exemption, which, as noted above, have now been finalized with the same language as in August 2011. Instead, it would take the form of additional regulations whose precise contours are yet unknown, and that may not issue until August 2013, about 18 months from now …

In sum, for present purposes, the “accommodation” is just a legally unenforceable promise to alter the way the mandate would still apply to those who are still not exempt from it; moreover, the promised alteration appears logically impossible. Meanwhile, the mandate itself is still finalized “without change,” excluding in advance any expansion of the “religious employer” exemption. In the world-turned-upside-down that we have all entered since the mandate issued, this is not merely “no change,” but is heralded as “great change,” for which the Administration has been widely congratulated.

“Second, ‘choice’ suddenly means ‘force,’” he continued. “This is not even a matter of whether contraception may be supported by the government--to our great dismay, there is already widespread government funding of contraception, at all levels of government, across the country. Instead, it is a matter of whether religious people and institutions may be forced by the government to provide coverage for contraception or sterilization, even if that violates their religious beliefs.”

“It is a matter of acknowledging the basic fact that government is forcing religious people and groups to do something in violation of their consciences,” he added. “And yet, listening to the public discourse about the mandate, it is easy to get the impression that the Catholic bishops were somehow on the cusp of prohibiting the use of contraceptives nationwide. Only in our new world-turned-upside-down does freedom require the denial of freedom; only in the post-mandate world is access to contraceptives somehow prohibited unless government begins forcing religious people and groups to fund and facilitate it.”

Bishop Lori also discussed how “liberals have suddenly abandoned liberalism” and how “sterilization, contraception, and abortifacients are essential, but ‘essential health benefits’ are not.”

Additional sources for this story
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• HHS Mandate Creates Absurd Results, Bishop Lori Tells House Judiciary Committee (USCCB)
• Bishop Lori’s written testimony (USCCB)
• Bishop Lori’s oral testimony (USCCB)

United States v. Jones

From The CATO Institute:

October 3, 2011
Legal Briefs

United States v. Jones

by Tim Lynch, Jim Harper and Ilya Shapiro

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As technology advances — and law enforcement adapts these advancements to police work — courts will be asked to apply the Fourth Amendment's protections against unreasonable searches and seizures in new and varied situations. In 2004, the FBI, as part of a joint task force, suspected Antoine Jones of dealing drugs. To verify their suspicions, agents secured a warrant allowing them to attach a GPS tracking device to Jones's car (but then attached it after the warrant had expired, and in Maryland rather than the warrant's operative jurisdiction of D.C.). The FBI used this device to monitor and record the car's every movement for nearly a month before finally arresting Jones. The U.S. Court of Appeals for the D.C. Circuit found that the FBI's action was unconstitutional because it violated Jones's "reasonable expectation of privacy" — the two-part Fourth Amendment standard developed in the landmark case of Katz v. United States. The "reasonable expectation of privacy" doctrine holds that if a person has an actual (subjective) expectation of privacy and that expectation is one society is prepared to accept, then the Fourth Amendment protects the object of that expectation. The court found that the long-term round-the-clock GPS surveillance, even of a vehicle always on public roads and in locations readily observable by a cop on the street, was qualitatively different than a temporary stakeout or other conventional surveillance. The government successfully petitioned the Supreme Court to review the case, and the Court added the issue of whether installing the GPS device was itself a Fourth Amendment violation, quite apart from the monitoring. Cato filed a brief supporting Jones and arguing that the Court should take this opportunity to strengthen Fourth Amendment protections by finding unconstitutional the government's continuous and long-term tracking of someone's vehicle without a valid warrant. This case affords the Court an opportunity to revisit the "reasonable expectation of privacy" standard — which has dominated this area of law for over 40 years but is a misinterpretation of Katz that has proven unworkable. Standing alone, the "reasonable expectation" test reverses the original meaning of the Fourth Amendment by putting the onus on citizens to prove the reasonableness of their expectations instead of examining the reasonableness of government action. By measuring the actions an individual takes to shield his information against the reasonableness of the government's actions in piercing that shield, the Court can simplify this area of law from one measuring esoteric "expectations" to one examining a straightforward factual question. Moreover, the government's conversion of Jones's property — his car — into a surveillance device acted as an unreasonable seizure for Fourth Amendment purposes because it deprived Jones of a valuable property right, the right to exclude others from his property. Similarly, using his car then to collect information and track Jones then became an unreasonable search. Thus, even if the Court continues to adhere to the "reasonable expectations of privacy" test, it should recognize the sanctity of Jones's property and find the warrantless GPS-attachment and -surveillance unconstitutional.

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High Tech Surveillance: Where to Draw the Line?

High Tech Surveillance: Where to Draw the Line?

From the CATO Institute:

Supreme Court Should Require Warrants for GPS Tracking

by Jim Harper

This article appeared on JURIST on November 10, 2011.

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As technology advances — and law enforcement adapts these advancements to police work — courts will be asked to apply the Fourth Amendment's protections against unreasonable searches and seizures in new and varied situations. The Supreme Court should ensure that courts maintain oversight of Information Age policing.

In 2004, the FBI suspected Antoine Jones of dealing drugs. To verify their suspicions, agents secured a warrant allowing them to attach a GPS tracking device to Jones's car, but they attached the device after the warrant had expired, and in Maryland rather than Washington, DC, where the warrant was valid. The device monitored and recorded the car's every movement for nearly a month before law enforcement finally arrested Jones.

Can law enforcement track people's every move using high-tech devices like this without a warrant? The US Court of Appeals for the District of Columbia Circuit found that the FBI's action was unconstitutional because it violated Jones's "reasonable expectation of privacy" — the two-part Fourth Amendment standard developed in the landmark 1967 case of Katz v. US. The "reasonable expectation of privacy" doctrine holds that if a person has an actual, subjective expectation of privacy and that expectation is one society is prepared to accept, then the Fourth Amendment protects the object of that expectation. The court found that the long-term round-the-clock GPS surveillance, even of a vehicle always on public roads and in locations readily observable by a cop on the street, was qualitatively different than a temporary stakeout or other conventional surveillance. The government asked the Supreme Court to review the case, and the Court has agreed, adding the issue of whether installing the GPS device was itself a Fourth Amendment violation, quite apart from the monitoring.

Jim Harper is the director of Information Policy Studies at the Cato Institute.

More by Jim Harper

The Court should take this opportunity to strengthen Fourth Amendment protections by finding unconstitutional the government's continuous and long-term tracking of someone's vehicle without a valid warrant, but not because it violates our "reasonable expectations of privacy." That language — which has dominated this area of law for over 40 years — is from the solo concurrence of Justice John Marshall Harlan, and it is a misinterpretation of Katz that has proven unworkable. The "reasonable expectation" test reverses the original focus of the Fourth Amendment, which asks whether government action, not private ordering, is reasonable.

The majority holding in Katz found constitutional protection for information because the defendant had shielded others from learning the information the government wanted to acquire and use. This is the standard that the Court should apply. If information is private — if the general public does not have access to it — law enforcement stands in the same shoes as everyone else. Using over-the-top technologies to deprive people of the privacy they have created in their lives is a search, and that kind of searching is unreasonable unless a judge has approved of it.

In this case, the government did not just collect information that was out there; it created data where none existed before, taking measurements at multi-second intervals of the whereabouts of their suspect for weeks. Nobody in the general public tracks anybody down to that much detail — except for stalkers. When service providers like cell phone companies do, it comes with contractual promises and regulations that keep information private.

The Court can simplify this area of law a great deal. Fourth Amendment protection should not be measured by "expectations," but by straightforward factual questions. Was the information available to the general public? Did the defendant take appropriate steps to shield information from the public and thus government agents, including relying on the physics, law and economics that keep information obscure?

A fascinating element of the case is the question of whether the government could convert Jones's vehicle into a surveillance system by attaching a GPS device to it. Doing so deprived Jones of an essential property right — the right to exclude others. Imagine if the Court does not recognize this as a seizure of property. Law enforcement might drop radio frequency identification tags in every coat pocket at a restaurant and learn through scanning these microchips on successive occasions who was at the restaurant and how often they return.

Even if the Court continues to adhere to the "reasonable expectations of privacy" test, it should recognize the sanctity of Jones's property and find that surreptitious, highly intrusive surveillance using unfamiliar technologies like GPS is unconstitutional without a warrant.

Supreme Court Ruling Restricts Police Use of GPS Device | Common Dreams

Supreme Court Ruling Restricts Police Use of GPS Device | Common Dreams

Supreme Court Ruling Restricts Police Use of GPS Device | Common Dreams

Supreme Court Ruling Restricts Police Use of GPS Device | Common Dreams

From CNS:

Obama Defends Roe v. Wade As Way for ‘Our Daughters’ to Have Same Chance As Sons to ‘Fulfill Their Dreams’

By Fred Lucas

January 23, 2012

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(CNSNews.com) – President Barack Obama says the 39^th anniversary of Roe v. Wade is the chance to recognize the “fundamental constitutional right” to abortion and to “continue our efforts to ensure that our daughters have the same rights, freedoms, and opportunities as our sons to fulfill their dreams.”

The 1973 U.S. Supreme Court nationalized abortion law, prohibiting states from deciding on the matter. In his written statement, Obama acknowledged that abortion has been a divisive political issue.

Obama, while serving in the Illinois State Legislature and as president of the United States, has taken a hard line on abortion rights.

In his statement on the anniversary of the Roe v. Wade ruling, Obama said it reflects the broader principles of America.

“As we mark the 39^th anniversary of Roe v. Wade, we must remember that this Supreme Court decision not only protects a woman’s health and reproductive freedom, but also affirms a broader principle: that government should not intrude on private family matters,” Obama said. “I remain committed to protecting a woman’s right to choose and this fundamental constitutional right.

“While this is a sensitive and often divisive issue -- no matter what our views, we must stay united in our determination to prevent unintended pregnancies, support pregnant woman and mothers, reduce the need for abortion, encourage healthy relationships, and promote adoption,” Obama said.

“And as we remember this historic anniversary, we must also continue our efforts to ensure that our daughters have the same rights, freedoms, and opportunities as our sons to fulfill their dreams.”

As a state lawmaker in Illinois, he voted four times against legislation to protect the life of a baby that survived a botched abortion. He voted againstsuch legislation at the state level in 2001, 2002 and 2003.

The 2003 bill was assigned to the Illinois Senate Health and Human Services Committee, which Obama chaired at the time. It mirrored a law passed by Congress, which said nothing in federal law should be construed to undermine the Roe v. Wade ruling.

As president, Obama signed the Patient Protection and Affordable Care Act, better known as Obamacare, which would appropriate federal money toward insurance plans that pay for abortions.

On Friday, the Obama administration finalized regulations that order Americans – unless they work directly at a church – to purchase government-approved health insurance plans that cover sterilizations and contraceptives, including those that cause abortions.

Planned Parenthood also marked the anniversary of the Supreme Court's abortion ruling by setting up a Web site "to show the world exactly what Roe has meant in the past and still means today."

The "Since Roe" Web site invites women to add their own comments about "how Roe v. Wade has made a difference in your life."

From The Christian Post:

Obama's DOJ Targets Pro-Life Free Speech

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In one of the lesser-known manipulations of U.S. law to advance the pro-abortion agenda, the President's Department of Justice has for several years been availing itself of a statute originally written to stop violence to instead seek massive fines and injunctions against peaceful pro-life advocates who offer alternatives to women on public sidewalks. But this politicization of the law in favor of abortion yielded a mixed record this week.

In Holder v. Pine, the U.S. Attorney General brought a legal attack against Mary Pine of West Palm Beach, Florida, who the federal court says is "a pro-life advocate who believes, based on her past unfortunate experience with abortion, that women who are considering abortion should be made aware of the available alternatives and assistance programs."

Pine's alleged federal offense is that she "offer[s] information and literature about 'life-affirming' alternatives to abortion" to people entering and leaving abortion centers

One single time, according to the Attorney General's complaint, Ms. Pine approached a car entering the abortion facility driveway that crosses the sidewalk, and she slightly, momentarily, may (or may not) have been there before the car was, so that the Department of Justice claims she blocked the car. But she "immediately" walked to the car's side, where the participants talked to her at length, wanting to hear her message.

The very next day, several DOJ representatives were at the abortion center to "investigate," but not as most of us would define it. The abortion center has a video camera running all the time, which would have shown what really happened. Yet the DOJ agents decided not to copy the video, and instead let it be destroyed. The judge called this "rather curious" and "hard to believe," making him wonder out loud "whether this action was the product of a concerted effort between the government and the PWC, which began well before the date of the incident at issue, to quell Ms. Pine's activities."

Ms. Pine's attorneys with the pro-life firm Liberty Counsel filed a motion for summary judgment, which the federal court granted last week. The judge declared that the DOJ had failed to follow the law in stretching the text of it to cover this "innocuous incident," and that no jury could find that Ms. Pine had the required motive, actual obstructing activity, and actual interference with someone getting an abortion, as the law requires.

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The Court rejected the Obama administration's contention that merely wanting to convince people to choose life instead of abortion qualifies as an illegal motive to "obstruct" abortion under FACE, and ruled instead the First Amendment thoroughly protects Pine's desire. So plainly agenda-driven was the administration's case, it led the judge to declare that "The Court is at a loss as to why the Government chose to prosecute this particular case in the first place."

The DOJ has apparently not learned its lesson. It brought another action against sidewalk counselor Dick Retta in Washington, D.C. Once again, the complaint contends that in one mere incident, as Mr. Retta was walking alongside a woman to convince her not to enter a Planned Parenthood facility, he stepped in between her and the door momentarily, according to the abortion center's employees. In this case, Mr. Retta's attorneys from the pro-life law firm ACLJ moved to dismiss the complaint before discovery and the interviewing of witnesses. An Obama-appointed federal judge denied the motion last week. But Mr. Retta will be able to seek summary judgment after discovery just as Ms. Pine did, and hopefully the court will follow the Florida judge's lead.

These are just two of several instances of the Obama administration using federal law enforcement to protect abortion and suppress speech rather than deal with actual threats to public safety. Last year, Senator Rand Paul investigated evidence produced by ADF-allied attorney Herb Grey from training seminars conducted by the FBI and DOJ in partnership with abortion organizations. The FBI distributed a "report" at the seminars, which was produced by the abortion groups and was attached to the DOJ officials's presentation outline. The report placed pro-life free speech in the category of violence and listed numerous pro-life websites in its detailing of potential threats. Similarly, in April 2009, the Department of Homeland Security issued a report on the threat of domestic terrorism by "rightwing extremists," specifying that such extremism "may include groups and individuals that are dedicated to a single issue, such as opposition to abortion."

These instances demonstrate in real time that President Obama prioritizes abortion as one of the most urgent activities that law enforcement must protect, even (or especially) by targeting pro-life free speech. And it also shows that there is one group of people who can call this administration and make them come running: abortionists.

Matthew S. Bowman is senior counsel with the Alliance Defense Fund (www.telladf.org), a legal alliance employing a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.