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MC&A Newsletter  ||  Volume XXIX : April 2013
This issue marks the fifth anniversary of the Midwin Charles & Associates LLC newsletter.  To commemorate the anniversary, we decided to make a few changes.  We gave the newsletter a facelift and did a bit if rebranding. You'll see additional changes over the next few months.  Introducing: Sidebar!
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Sidebars Same Sex Marriage Makes Its Way to Supreme Court
hands
On March 26, 2013, the U.S. Supreme Court heard oral arguments on Proposition 8, California's gay marriage ban. MC&A first brought you news of Prop 8 in its August 2010 newsletter when a federal judge in California's District Court ruled that Prop 8 was unconstitutional. The legislation was passed in November 2008 by a California ballot referendum just months after the state's Supreme Court handed down a decision that the state would recognize gay marriage.

The first issue that the U.S. Supreme Court asked attorneys to address was whether the parties defending Prop 8 even had legal standing to do so. Justices Breyer, Ginsberg, Sotomayor and Kagan were all of the opinion that Prop 8 defenders could not represent California after the state's governor and attorney general had refused to defend it. However, the remaining justices agreed with California's Supreme Court, which had ruled that Prop 8 proponents could act as representatives of the state in this action. By the end of arguments, it appeared that a majority of the justices agreed that there was in fact standing.

Once the issue of standing had been argued, the justices turned to the ideological issues surrounding Prop 8. Attorney Charles J. Cooper, representing proponents of Prop 8, argued that "responsible procreation" was a rational basis reason for denying benefits to homosexuals. Justice Kagan fired back, stating, "If you are over the age of 55, you don't help us serve the government's interest in regulating procreation through marriage. So why is that different?"

Meanwhile, Justice Scalia fired away at attorney Ted Olson who was representing the couples challenging Prop 8. Scalia asked Olson, "When did it become unconstitutional to exclude homosexual couples from marriage?" Olson responded with another question: "When did it become unconstitutional to prohibit interracial marriages?" Olson finally pointed out in response to Scalia's question that the rights of homosexuals have been an evolutionary process.

Overall, there appeared to be a clear split between the 4 liberal justices and the 4 conservative justices. The swing vote comes down to Justice Kennedy. Many believe after hearing the arguments that he will join those against Prop 8 in his ruling, but until the Court provides its decision this summer, the final ruling in this case is anybody's guess.

On March 27, 2013, just one day after hearing arguments on Prop 8, the Court heard oral arguments on the constitutionality of the Defense of Marriage Act (DOMA), a federal law defining marriage as between a man and a woman.

DOMA was signed into law in 1996 during Bill Clinton's presidency. In February 2011, President Obama's administration declared the act unconstitutional, with Attorney General Eric Holder announcing in a letter to Congress that the Department of Justice would not longer defend DOMA in federal courts.

The key issue with the act is that it prevents gay couples from receiving federal marriage benefits even if the couple's state recognizes some form of gay marriage. This means that while a gay couple may be legally married in their state, they can still be denied marital deductions and social security benefits. Justice Ruth Bader Ginsberg commented on just this dilemma: "Your spouse is very sick, but you can't get leave. One might well ask, what kind of marriage is this?"

That is exactly the question that petitioner Edie Windsor wants answered. Edie and her partner of over 40 years, Thea Spyer, married in 2007 in Canada. Two years later, Spyer died and left her estate to Windsor. Because the federal government did not recognize the marriage, the IRS sent Windsor a tax bill for $363,053. In a federally recognized marriage, a surviving spouse is not required to pay federal estate taxes. As a result, Windsor decided to sue the U.S. Government and when Obama's administration declared DOMA unconstitutional, the department of justice became Windsor's ally in her fight to overturn DOMA.

Defending DOMA was attorney Paul Clement, who was arguing on behalf of the Bipartisan Legal Defense Group (BLAG). Clement argued to the court that one very important reason that DOMA was signed into law was for the purpose of creating uniformity across the country defining marriage. He wrote in his brief to the Supreme Court that DOMA does not infringe on any state's ability to legalize gay marriage; it simply makes sure that federal benefits are distributed uniformly throughout the nation.

Arguing against DOMA, Windsor and the Obama administration point out that Congress' justifications in passing DOMA, which was to defend traditional notions of morality and marriage, are not sufficient to meet the constitutional standard. The Justice Department stated, "Moral opposition to homosexuality, though it may reflect deeply-held personal views, is not a legitimate policy objective that can justify unequal treatment of gay and lesbian people."

Again, it looks like Justice Kennedy will be the deciding factor in whether DOMA will be struck down or not. Throughout the argument, Kennedy's comments showed concern that Congress lacks the authority to define marriage, believing instead that such power is reserved to the states. In one such comment, he stated that DOMA was "not consistent with the historic commitment of marriage, and of questions of the rights of children, to the states."

It is important to note that should the Court find DOMA unconstitutional, states would still be free to decide for themselves whether to legalize gay marriage. However, the federal government would have to recognize gay marriages in the states where it is legal.

Sources:  "Gay Marriage, Round 2: Majority of Supreme Court Skeptical of DOMA," by Chris Good, Ariane De Vogue and Matt Larotonda, March 27, 2013, www.abcnews.go.com; "Supreme Court Proposition 8 Case Arguments Cast Doubt On Gay Marriage Ban," by Mike Sacks and Ryan J. Reilly, March 26, 2013, www.huffingtonpost.com; "Supreme Court likely to advance gay marriage but stop short of broad ruling," by Pete Williams, March 29, 2013, nbcpolitics.nbcnews.com; "Supreme Court tackles federal Defense of Marriage Act," by Pete Williams, March 26, 2013, nbcpolitics.nbcnews.com
 
Sidebars
 Gun Control Debate Has Country Up In Arms
Gun
In the wake of the shootings at Sandy Hook Elementary School in December of 2012, the debate over gun control in the U.S. has exploded, culminating in the creation of a new gun control bill. The bill has been met with great hostility and while many hope that it will find its way up the legislative ladder, there does not appear to be enough support in Washington for it to pass.

The bill, originally by Senate Majority Leader Harry Reid, would require expanded background checks for those seeking to purchase guns. This would happen by requiring all transfers to go through a licensed gun dealer. Currently, only gun dealers are required to conduct instant background checks before providing a buyer with a gun. However, those persons who are not in the regular business of buying and selling guns are not required to conduct background checks. Under the new bill, the seller of a gun would have a gun dealer oversee the transfer and conduct the background check. The bill does provide some exceptions to the requirement of going through a licensed gun dealer, such as a parent lending a child a rifle for a hunting trip.

The majority of supporters of the bill in the Senate are Democrats, although some Republicans have also shown interest in seeing the bill pass into law. Those opposing the bill are concerned that it infringes on Americans' Second Amendment right to bear arms. They also have issue with the verbiage in the bill requiring a background check for all transfers "pursuant to an advertisement." They ask: what does that mean? Does it apply to an email or private message board, or only formal advertisements? In an attempt to make the bill more bipartisan, a ban on high-capacity magazine clips and semi-automatic weapons were removed from the original bill, but that will likely not be enough to appease Senators against gun control.

One portion of the bill that has many opponents taking notice is that the bill would give the attorney general the power to set the price that the licensed gun dealers would charge to handle the private transfer. If the attorney general has this power, he could in theory raise prices high enough so as to prevent or discourage private citizens from making gun transfers.

The bill also raises issues of privacy. As the law currently stands, background check information and records must be destroyed within 24 hours of obtaining them to prevent the data from being used for purposes other than the gun purchase. The new bill removes such privacy protections for mental-health records - the attorney general would be able to use those records for any purpose.

With so little support in the Senate, the current bill appears to have a very grim future. But that does not mean all is lost for those in support of tighter gun control. Members of Senate all appear to be open to some type of new gun control law, but it must be one that is as narrowly tailored as possible so as not to infringe on the constitutional rights of American citizens. The bill may die, but the debate over gun control is still alive and kicking.

Sources: "Gun Debate Revives Questions About Self-Defense," by Adam Geller, April 14, 2013, abcnews.go.com; "Senate leaders: Too close to say if gun control bill has the votes to pass," by the Associated Press, April 14, 2013, www.foxnews.com; "The rush to a bad gun-control law," by David B. Rivkin, Jr., and Andrew M. Grossman, April 15, 2013, www.washingtonpost.com; "Stage set for Senate gun control debate; background checks are sticking point," by David Sherfinski, March 21, 2013, The Washington Times; "Gun control bill in peril," by John Bresnahan and Jake Sherman, April 16, 2013, www.politico.com
Sidebars
 
Trial of Abortion Doctor Kermit Gosnell - Real Life House of Horrors
Kermit Gosnell
On March 18, 2013, trial began in the case of Doctor Kermit Gosnell. Gosnell is charged with first-degree murder of 7 fetuses and third-degree murder of a 41 year-old woman. Gosnell ran an abortion clinic in Philadelphia in which he allegedly performed illegal late-term abortions, snipping the spinal cords of the fetuses born alive, and also providing prescription drugs to addicts and drug dealers.

Gosnell's clinic, called the Women's Medical Society, first obtained approval to open as an abortion clinic in 1979 by the Pennsylvania Department of Health. Ten years later, officials from the health department conducted another site review, at which time they found a few minor violations that Gosnell said he would fix. In 1992 and 1993, the department again found minor violations during inspections and let it slide. Despite being a known violator - albeit for minor violations - 1993 was the last date that the clinic was inspected. It wasn't until almost 20 years later that law enforcement officials discovered the horrors that were occurring within the walls of Gosnell's clinic.

On February 18, 2010, federal investigators raided Gosnell's clinic to seize evidence related to the illegal provision of prescription drugs to addicts and dealers. When officers entered the clinic, they were not prepared for what they encountered. Gosnell's clinic was rundown and unsterile, with feral cats wandering throughout the clinic. Investigators testified to the grand jury that the clinic reeked of cat urine, and photos from the procedure rooms show medical tools covered in rust and dust. The worst discovery was the 30 dead fetuses found in the clinic's freezer, many of which are believed to be from third-term abortions.

In Pennsylvania, as in many states, it is illegal to perform a third term abortion, which is an abortion past the 24th week of gestation. Prior to performing an abortion, medical professionals must make a measurement of gestational age, done by ultrasound. According to testimony, Gosnell circumvented this requirement by training his staff to take the ultrasound at an angle so as to make the fetus appear smaller and therefore, younger.

Gosnell was the only licensed medical professional working out of the clinic. The other staff members who assisted with the abortions included medical school graduates who did not have their medical licenses, but were nonetheless holding themselves out to patients as doctors, an assistant who began working at the clinic when she was just 15 years old, and a 6th grade dropout who administered the anesthesia for the procedures.

Nearly all of Gosnell's staff have pleaded guilty to charges against them and they have testified in Gosnell's trial. Adrienne Moton, a former medical assistant at the clinic, testified that she killed at least 10 babies by cutting their spines with a pair of scissors - a procedure they learned from Gosnell. Moton testified that she recalled one such baby that she measured as almost 30 weeks old that she believed could have survived based on his large size and pink coloring. She stated on the stand that Gosnell joked that the baby was so large it could have walked her to the bus. Gosnell's other staff members also testified that they assisted in cutting the spinal cords of aborted fetuses and that they witnessed Gosnell snipping their necks on numerous occasions.

What does Gosnell have to say about all this? He maintains that he is innocent. His attorneys are arguing that the aborted babies were already dead or dying from the abortion drug that he administered. They also claim that the prosecution cannot prove that the fetuses were born alive. In fact, there is no physical evidence for 5 of the 7 dead fetuses for whose deaths Gosnell is charged. And regarding Karnamaya Mongar, the 41 year-old who died during an abortion procedure, the defense team claims that her death was the result of other drugs in her system that were not from the clinic and complications with bronchial problems that Mongar allegedly failed to report to Gosnell.

This case, though not receiving much mainstream media attention, has sparked a renewed debate over abortion. Both the Pennsylvania Department of Health and the National Abortion Federation turned a blind eye to Gosnell's clinic despite reports of violations and documentation of women reporting to the local hospitals with venereal diseases that they contracted while receiving care from Gosnell's clinic. The Grand Jury Report stated that such oversight occurred because both organizations were pro-abortion and therefore did not want to risk putting a woman's right to choose in jeopardy.

Pro-life proponents argue that this case demonstrates that fetuses are in fact living, breathing beings that should be protected, while pro-choice proponents say this case emphasizes the importance of providing clean, safe clinics for women seeking abortions. Everyone can agree, however, that the acts that occurred in that clinic were nothing less than atrocious.

Gosnell's trial is anticipated to last another month. If convicted, Gosnell faces the death penalty or a sentence of up to 100 years imprisonment.

Sources: "Everything You Need To Know About Kermit Gosnell And The Abortion 'House of Horrors' Trial," by AJ Delgado, April 12, 2013, www.mediaite.com; "Abortion doctor Kermit Gosnell's murder trial sparks political firestorm," by CBS News, April 15, 2013, www.cbsnews.com; "Kermit Gosnell, Abortion Doctor, Enters 5th Week Of Murder Trial; More Gruesome Details Revealed," by Maryclaire Dale, April 15, 2013, www.huffingtonpost.com; "Abortion Doctor Trial: Coverage of Kermit Gosnell Case Sparks Debate," by Katherine Bindley, April 12, 2013, www.huffingtonpost.com
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