By Davin Rosborough, Senior Staff Attorney, ACLU Voting Rights Project & Sophia Lin Lakin, Deputy Director, ACLU Voting Rights Project

Today, the Supreme Court decided two Arizona voting laws were not racially discriminatory and did not violate Section 2 of the Voting Rights Act of 1965 (VRA) in Brnovich v. Democratic National Committee. The VRA is a landmark piece of federal legislation that prohibits racial discrimination in voting. As Justice Kagan wrote in dissent, the VRA “represents the best of America … It marries two great ideals: democracy and racial equality.” Congress enacted Section 2 of the VRA to address discrimination imposed by voting laws — no matter how blunt or subtle — considering local circumstances and history, as the ACLU and ACLU of Arizona described in their amicus brief.

The court’s decision does not prevent challenges to discriminatory laws under the VRA, and it did reject some of the most extreme arguments made by the laws’ proponents. But it takes a sharp turn away from vindicating Section 2’s purpose and sends another signal to states that federal courts will not stop newly passed suppressive laws, except perhaps in the most egregious and shockingly discriminatory circumstances.

Even former Justice Antonin Scalia, a notoriously conservative judge nominated by President Ronald Reagan, recognized that Congress passed Section 2 of the VRA to serve as a “powerful … weapon with which to attack even the most subtle forms of discrimination.” But the court today rejected an approach to evaluating whether a voting practice violates Section 2 that considers the actual barriers that voters of color face in light of restrictive voting laws, as a result of the history of discrimination, socioeconomic conditions, and other local circumstances. Instead, it adopted a reality-divorced approach that focuses on theoretical opportunities that a voter might be able to access in order to vote, and other factors divorced from the Act’s text and purpose such as the state of voting laws in 1982, when Section 2 was last amended. While the court frames its ruling as narrow, fact-driven, and providing mere guideposts rather than a strict test, the history of another case — a decision rejecting a challenge to Indiana’s voter ID law — offers a cautionary tale about its consequences.

In 2008, the Supreme Court decided Crawford v. Marion County Election Board, holding that Indiana’s new photo ID law did not violate the Constitution by unduly burdening the right to vote. The court admitted that there was no evidence of any in-person voter impersonation fraud in Indiana, the only kind of fraud that an ID law might prevent. But it declined to strike down Indiana’s entire photo ID law, as the plaintiffs in that case sought, because it believed there was not enough evidence of the magnitude of the impact of the law, like the number of registered voters with photo ID. The court did acknowledge that the law would impose a “somewhat heavier burden” on certain discrete categories of people. In doing so, it suggested a roadmap for future, more limited challenges, where discrete groups of voters might be able to obtain narrower wins alleviating a law’s heaviest burdens.

Despite this supposedly limited ruling, federal courts have relied repeatedly on Crawford to reject constitutional challenges to restrictive voting laws. Even though Crawford theoretically left open a pathway to success, the constitutional theory that the Crawford plaintiffs relied upon has rarely been successfully used since — with one major exception. In Fish v. Schwab, the ACLU successfully challenged a Kansas law promoted by Kris Kobach which “denied approximately 30,000 would-be voters’ registration applications” without actually addressing any real problem of voter registration fraud.

While the court’s ruling today preserves Section 2 as a means to challenge discriminatory voting restrictions, the approach adopted by the court may well be used by courts to routinely reject challenges brought under Section 2 of the VRA — much like courts have done with constitutional challenges in the wake of Crawford. These decisions, along with Shelby County v. Holder in 2013 — when the court eliminated the requirement that states with a strong history of discriminatory voting laws receive preapproval for new voting laws by a federal court or the Department of Justice — send a plain message.

While voting rights advocates like the ACLU will continue to challenge discriminatory voting laws in court, case-by-case litigation alone will not solve this country’s deep voter suppression problem. As Justice Kagan underscored in her dissent, the court’s decision comes “at a perilous moment for the Nation’s commitment to equal citizenship … in an era of voting-rights retrenchment — when too many states and localities are restricting access to voting in ways that will predictably deprive members of minority groups of equal access to the ballot box.”

To defend our democratic right, Congress must pass the John Lewis Voting Rights Advancement Act to more explicitly protect the right to vote, expand registration and voting access for all communities, and reinstitute a preclearance procedure for states and localities that repeatedly enact discriminatory voting laws.

By Eunice Cho, ACLU Senior Staff Attorney & Joanna Naples-Mitchell, U.S. Researcher, Physicians for Human Rights

On President Biden’s 100th day in office, Nilson Barahona-Marriaga joined demonstrators who greeted the president at a rally in Atlanta. “End detention now!” they chanted. “Communities are afraid!”

A 39-year-old immigrant from Honduras, Nilson had been recently released from Immigration and Customs Enforcement’s (ICE) Irwin County Detention Center in Ocilla, Georgia. The Irwin detention center, which remains open despite the Biden administration’s promise to end its contract with the facility, had most recently gained attention due to multiple allegations of involuntary hysterectomies performed on women at the facility.

When Nilson was detained at Irwin last year, he learned through his lawyer that coronavirus was present at the facility. ICE officials had failed to alert or protect staff and detainees. Facility staff regularly failed to wear masks and ensure disinfection.

Out of desperation, Nilson participated in a hunger strike with other detainees. Their group made common-sense demands that ICE follow public health guidelines, provide them with masks and cleaning supplies, and release medically vulnerable people from detention. Instead, facility officials threw Nilson and his fellow hunger strikers in solitary confinement. ICE cut off the water in their cells, so they could not drink, wash, or flush the toilets. Officials also restricted Nilson’s communications with his lawyer and family. Only nine days later, when Nilson realized that a person detained in the room next to his had COVID-19, did he end his hunger strike.

In the last year, hundreds of detained immigrants like Nilson have participated in a growing number of hunger strikes nationwide, seeking protection from COVID-19. ICE officials and detention staff have met these hunger strikes—protected speech under the First Amendment–with extreme measures, including increased use of force such as pepper spray, physical force, and rubber bullets. Today, detained immigrants are currently on hunger strike for the same reason at a number of facilities, including the Northwest Detention Center in Tacoma, Washington, and Bergen County Jail in New Jersey. After several months of declines, ICE has again begun to increase the number of detained people in custody. COVID-19 cases in ICE detention are again on the rise.

Our new report, Behind Closed Doors: Abuse and Retaliation Against Hunger Strikers in U.S. Immigration Detention, by the ACLU and Physicians for Human Rights, reveals that the scope and scale of ICE’s cruelty in response to such hunger strikes is much broader than previously known. Based on an assessment of over 10,000 pages of previously disclosed documents, the report analyzes hundreds of hunger strikes in ICE detention from 2013 to 2017, as well as the testimony of recent hunger strikers. The report finds that abuse and retaliation against hunger strikers is commonplace and dates back to President Biden’s time as vice president. ICE has responded to hunger strikes with involuntary medical procedures, solitary confinement, retaliatory deportation and transfer, and use of force — responses which are in violation of constitutional protections, international human rights law, and medical ethics.

Our report also shines a light on the many forms of day-to-day psychological coercion ICE employs to try to break hunger strikes, including denying access to basic privileges, restricting water access, and threatening prosecution.

Rather than safeguarding their patients’ health, medical professionals played a disturbing role in these abuses. During an August 2016 hunger strike of 22 mothers at the Berks County family detention center in Pennsylvania a family detention, an ICE physician sought to downplay the situation. The ICE physician also proposed family separation and force-feeding as responses to the hunger strike, noting that “If it appears they really are on a hunger strike, we will need to separate the mother and children – send mom to an IHSC facility to address the hunger strike.”

Doctors and nurses employed or contracted by ICE also violated medical ethics by supporting government motions for invasive and involuntary medical procedures, including force-feeding, forced hydration, forced urinary catherization, involuntary blood draws, and use of restraints. Our report identifies at least 14 separate ICE medical declarations supporting government motions for such involuntary procedures, in violation of physician’s ethical obligations to preserve the autonomy of mentally competent individuals, as well as international human rights law.

Our report reveals the lengths to which ICE will go to punish and deter hunger strikers rather than engage with their legitimate demands. Changing the response to hunger strikes will require addressing their underlying cause: an abusive and dangerous civil immigration detention system.

President Biden – who oversaw these abuses when Vice President – should reverse course and end the U.S. reliance on a mass immigration detention system and invest in community-based social services as alternatives to detention. Health professionals should refuse to participate in violations of medical ethics in their provision of care to detained immigrants, and government lawyers should refrain from pursuing cases for force feeding and other involuntary medical procedures.

By Zoe Brennan-Krohn, Staff Attorney & Rebecca McCray, Senior Editor

There were many shocking moments in Britney Spears’ 24-minute statement calling for an end to her conservatorship, delivered Wednesday to a Los Angeles probate judge by phone. The pop star, who has lived under a conservatorship chiefly overseen by her father for 13 years, described grueling labor demands, constant surveillance, being cut off from friends, and being confined against her will. As Spears made her case for the judge, one startling detail stood out amidst the laundry list of abuses: Although she would like to have children and be married, her conservators refuse to allow her to have her intrauterine device (IUD) removed, she said, “because they don’t want me to be able to have children.”

Fans, onlookers, and the media seized on this revelation, many expressing shock and dismay that a conservator could require a 39-year-old woman to use birth control against her will. “Britney HAS to keep an IUD in under her conservatorship?” asked one horrified Twitter user. “How is any of this legal/okay?”

Unfortunately, losing your reproductive freedom because you are in a conservatorship is very often legal. When a court puts a person under a conservatorship or guardianship, the court is taking away that person’s right to make their own choices. And often, that includes reproductive choices. Even though a conservatorship is a highly invasive, severe loss of rights and liberty, courts approve them routinely, and almost always allow them to continue permanently.

Spears’ experience is part of a long history of people with disabilities — most often people of color — being forcibly sterilized, forced to end pregnancies, or losing the right to raise their own children. Thanks to Spears’ large platform and following, her demands to be freed from her conservatorship have been heard. But there are untold thousands of people living under this same type of restrictive structure, who have lost their rights to reproductive freedom, often permanently.

As the eugenics movement gained popularity in the early 20th century, numerous states passed laws allowing for the involuntary sterilization of people with disabilities. In 1927, an 8-1 decision from the Supreme Court approved forced sterilization laws, in a sweeping and bigoted opinion penned by Justice Oliver Wendell Holmes. The plaintiff in that case, Buck v. Bell, was a woman named Carrie Buck, who challenged her forced sterilization. She had been deemed “feebleminded” by a family that had taken her in as a servant, and whose relative had raped her. To cover up the resulting pregnancy, the family had doctors commit her to an institution where they planned to sterilize her. Justice Holmes’ opinion for the court’s majority stated:

“It is better for the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”

This opinion had profound consequences. Between 1907 and 1945, upwards of 70,000 people — overwhelmingly poor people of color — were sterilized involuntarily under eugenic sterilization laws. California’s forced sterilization law was not repealed until 1979, and forced sterilization in California prisons continued even after that. Buck v. Bell has never been overturned.

While the bald cruelty of Holmes’ words may seem antiquated, the practice of controlling the reproductive choices of people with disabilities continues today. Then, as now, forced sterilization or birth control is often cast by courts and conservators as a protective mechanism in the best interest of a person with a disability, or for their safety. Some guardians and conservators who rob conservatees of these choices are certainly acting out of genuine concern and love for the person in their care. But the choice to have or not have a child, and when to do so, is a fundamental right. Many people with disabilities, even significant disabilities, have and raise children in loving, safe families. The denial of that right is too often based in stigma, paternalism, and stereotypes, and can have a lasting mental, emotional, and physical impact on the person deprived of their reproductive autonomy.

We still don’t know the specific terms or details of Spears’ conservatorship. We don’t know whether she identifies as a person with disabilities, or what private medical conversations she or her conservators have had about these choices. But we now know that she has stated that she wants to have another child and be a parent, and that she is being prevented from doing so. And we know that she has said that she wants to get out of the conservatorship. As we’ve said before, the ease with which people with disabilities are placed under the control of a conservator or guardian and stripped of their civil rights and liberties is a deeply concerning, systemic issue, and what Spears has shared publicly fits the pattern of harm and deprivation of autonomy that happens all too often across the country.

Thankfully, an IUD is not a permanent method of birth control, and Spears should be able to have a child after its removal, should she still want to. We are hopeful that thanks to Spears’ large platform and the spotlight on her statement, the judge will heed her request to restore her rights. There are many less-restrictive support systems, like supported decision-making, that she and trusted family or friends can use.

Justice Holmes’ offensive and bigoted rhetoric may no longer be in use, but Buck v. Bell is still the law of the land, with few exceptions. As The Daily Beast reports, more than half of states permit the forced sterilization of people under conservatorships in some capacity. And across the country, people still rely on stereotypes and assumptions to take reproductive choices out of the hands of people with disabilities — especially BIPOC and marginalized people with disabilities. The coercive power and control handed to conservators is a disability rights crisis, and an insult to the reproductive liberty of people with disabilities.