The Refugee Olympic Team

By: Danielle Ser

This past summer, a global audience watched as their nation’s teams competed in the 2016 Summer Olympics in Rio de Janeiro, Brazil.  A media frenzy surrounded these Olympic Games with topics ranging from the Zika virus and its possible effect on athletes and onlookers to Brazil’s poverty-stricken areas to Ryan Lochte’s mishap with Brazilian law enforcement.  Another divisive topic made its way to Olympic headlines, as the International Olympic Committee announced the formation of the Refugee Olympic Team (ROT).[1]

History & Background

The International Olympic Committee was formed on June 23, 1894 and acts as the supreme authority of the Olympic Movement.[2]  Its stated goal “is to contribute to building a peaceful and better world by educating youth through sport practiced without discrimination of any kind, in a spirit of friendship, solidarity and fair play.”[3]  Two other major constituents of the Olympic Movement are the International Sports Federations and the National Olympic Committees.[4]

The Olympic Charter is a constitutional-like document detailing Olympic regulations and policies, including who may participate in the Olympic Games.[5]  The Rule 40 bye-law outlines that the International Sports Federations establishes rules for participation in the Olympics, but are submitted to the International Olympic Committee Board for approval.[6]  Rule 41 governs competitor nationality where an Olympic athlete must be a national of the country of National Olympic Committee who enters that athlete, and the International Olympic Committee resolves all matters relating to determination of country which athletes may represent.[7]

The 2016 Refugee Olympic Team

On March 2, 2016, the International Olympic Committee’s Executive Board created the ROT.[8]  The National Olympic Committees identified forty-three potential athletes to represent the Refugee Olympic Athletes team, and ten athletes were ultimately named to the team.  To be nominated, officials considered athlete sporting level, official refugee status verified by the UN, personal history, and background.  The athletes selected to the team were accorded the honor of marching in the Opening Ceremony with the Olympic flag before Brazil, the host nation, and during medal ceremonies, the Olympic flag was to be raised and the Olympic anthem to be played.[9]  Furthermore, they lived together in the Olympic Village, just as other teams.  The athletes expressed gratitude that they participated in the Olympic games, lived among the other athletes, met new people, and traveled to new places.[10]

The athletes chosen came from Syria, South Sudan, Ethiopia, and the Democratic Republic of the Congo.[11]  They competed in swimming, judo, marathon running, and medium-distance running.[12]

Conclusion

Forming the Refugee Olympic Team was a strong statement acknowledging that refugees have a place in the world and can represent something greater than themselves, without having a per se home nation.  Creation of this team is not the first time the International Olympic Committee has assisted the refugee crisis.  For example, they created a two-million-dollar special fund to develop relief projects through sport in collaboration with National Olympic Committees around the world.[13]  The International Olympic Committee President stated that the Refugee Olympic Team would be

“a symbol of hope for all the refugees in our world, and will make the world better aware of the magnitude of this crisis. It is also a signal to the international community that refugees are our fellow human beings and are an enrichment to society. These refugee athletes will show the world that despite the unimaginable tragedies that they have faced, anyone can contribute to society through their talent, skills and strength of the human spirit.”[14]

[1] Press Release, International Olympic Committee, Refugee Olympic Team to Shine Spotlight on Worldwide Refugee Crisis, (June 3, 2016), https://www.olympic.org/news/refugee-olympic-team-to-shine-spotlight-on-worldwide-refugee-crisis.

[2] https://www.olympic.org/about-ioc-institution (last visited Nov. 6, 2016).

[3] Id.

[4] Olympic Charter, International Olympic Committee, (Aug. 2, 2016), https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/General/EN-Olympic-Charter.pdf#_ga=1.187985640.1588709296.1478389429.

[5] Id. at 77.

[6] Id.

[7] Id. at 78.

[8] Press Release, International Olympic Committee, Team of Refugee Olympic Athletes (ROA) Created by the IOC, (Mar. 2, 2016), https://www.olympic.org/news/team-of-refugee-olympic-athletes-roa-created-by-the-ioc.

[9] Press Release, International Olympic Committee, Refugee Olympic Team to Shine Spotlight on Worldwide Refugee Crisis, (June 3, 2016), https://www.olympic.org/news/refugee-olympic-team-to-shine-spotlight-on-worldwide-refugee-crisis.

[10] Id.

[11] Id.

[12] http://www.unhcr.org/en-us/rio-2016-refugee-olympic-team.html (last visited Nov. 6, 2016).

[13] Press Release, International Olympic Committee, Refugee Olympic Team to Shine Spotlight on Worldwide Refugee Crisis, (June 3, 2016), https://www.olympic.org/news/refugee-olympic-team-to-shine-spotlight-on-worldwide-refugee-crisis.

[14] Id.

Ending Arizona’s Rape Kit Backlog Problem

By: Rebecca Reiben

Every one hundred and nine seconds a person experiences sexual assault.[1] When a victim reports the assault, the victim can elect to have a physician perform an invasive examination, which involves the victim explaining intimate details of the assault, taking photographs of the victim’s body, taking DNA swabs for evidence left by the attacker.[2] This evidence is preserved in a rape kit,[3] and then if the DNA evidence is tested, it can be used to not only solve the current crime, but prevent future crime. Historically “rape kit evidence can identify an unknown assailant, link crimes together, [] identify serial offenders . . . confirm the presence of a known suspect [or affirm] the survivors account of the attack.”[4] Rape kits are tested at the discretion of the police department, but all rape kits should be tested because it allows a victim to feel as though their case matters and holds perpetrators accountable.[5]

It is estimated that jurisdictions across the United States have a rape kit backlog of more than 175,000 that are sitting in police department and crime storage facilities across the county.[6] In Arizona specifically, the Arizona Sexual Assault Evidence Collection Kit Task Force reported a backlog of 6,424 untested rape kits in Arizona, 4,000 of which are in Maricopa County.[7] This backlog is blamed on a lack of funding and varying policies between law enforcement agencies.[8]

These agencies have complete discretion in which kits to test. The detective determine whether to send the kit to the lab on a case-by-case basis leading to a backlog of kits that should have been tested but were not.[9] The Justice Department recently passed the new Sexual Assault Kit Initiative (SAKI), which provides “local communities with resources to support multidisciplinary community response teams engaged in comprehensive reform of the jurisdiction’s approach to sexual assault cases.”[10] Funding should be used to test kits, investigate and prosecute cases connected with those kits, and re-engagement of the sexual assault victim.[11]

Enacting legislation is an important step in ending the rape kit backlog and providing justice for survivors who were brave enough to come forward. In January 2016, Governor Doug Ducey passed an executive order establishing the Arizona Sexual Assault Evidence Collection Kit Task Force.[12] The task force was tasked with developing statewide testing protocols for sexual assault evidence, identify untested kits, implementing evidence tracking systems, recommending legislation to ensure testing, and provide recommendations for continued funding.[13] The Governor provided $500,000 in funding to begin the testing efforts.[14] However, according to the task force, this only covers about 625 rape kits.[15]

Additionally, Maricopa County received $2.7million in federal grants to test backlogged sexual assault kits.[16] The funds will be used for the analysis of backlogged kits as well as for the investigation and prosecution of these untested kits in hopes of reducing unsolved sexual assault cases in Maricopa County.[17] The County is using the funding to implement a new ‘test all’ policy that allows every sex-crime evidence kit to be tested.[18] Several states across the country have been successful in implementing similar policies. For example, Detroit is currently in the process of testing its 11,341 of backlogged kits.[19] As of September 2016, Detroit tested about 10,000 of its untested kits, “resulting in 2,616 DNA matches and the identification of 770 potential serial rapists,” and obtained about sixty convictions.[20] These same kits linked to crimes committed in 40 states.[21]

The recommendations from the Task Force for handling Arizona’s rape kit backlog were due on October 1, 2016. Based on their findings, the funding allocated is enough to test many of the rape kits, but it is expected to have as many as 2,000 left statewide.[22] This number is expected to continue to grow with new reported cases. By allowing rape kits to go untested, the state is allowing perpetrators, and potential serial perpetrators, to walk the street without being held accountable for their criminal actions. We, as Arizona citizens, must continue to hold our legislature accountable to victims of this state. Citizen safety should be a top priority.

 

[1] About Sexual Assualt, Rainn, http://www.endthebacklog.org/backlog/what-rape-kit-backlog (last visited Nov. 11, 2016).

[2] What is the Rape Kit Backlog? End the Backlog, http://www.endthebacklog.org/backlog/what-rape-kit-backlog (last visited Nov. 11, 2016). See also, Aida Chavez, Advocates: Rape-Kit Backlog Will Discourage Victims, Enable Offenders, The Arizona Republic (Oct. 28, 2016) http://www.azcentral.com/story/news/local/phoenix-contributor/2016/10/28/advocates-rape-kit-backlog-discourage-victims-enable-offenders/92895466/.

[3]A rape kit is “a container that includes a checklist, materials, and instructions, along with envelops and containers to package any specimens collected during the exam.” What is a Rape Kit? Rainn, https://www.rainn.org/articles/rape-kit (last visited Nov. 12, 2016).

[4] Why Testing Rape Kits Matters, End the Backlog, http://www.endthebacklog.org/backlog/why-testing-matters (Last visited 11, Nov. 2016).

[5] Id.

[6] Chavez, supra note 2. See also What Rape Kit Backlog?, supra note 2.

[7] Chavez, supra note 2.

[8] Id.

[9] Id. (quoting Ilse Knect, Director of Advocacy and Policy at the Joyful Heart Foundation).

[10] Melissa Schwartz, Joyful Heart Foundation Applauds $38 Million Awarded to Support Comprehensive Rape Kit Reform, End the Backlog (Sept. 26, 2016) http://www.endthebacklog.org/blog/joyful-heart-foundation-applauds-38-million-awarded-support-comprehensive-rape-kit-reform.

[11] Id.

[12] Ariz. Admin. Reg. 85 (Jan. 15, 2016), http://azgovernor.gov/sites/default/files/eo2016-02_sexual_assault_kits.pdf.

[13] Id.

[14] Griselda Nevarez, Doug Ducey Calls Rape Kit Task Force’s Recommendations a ‘Step in the Right Direction,Phoenix New Times (Oct. 18, 2016) http://www.phoenixnewtimes.com/news/doug-ducey-calls-rape-kit-task-forces-recommendations-a-step-in-the-right-direction-8747262.

[15] Id.

[16] Marissa R. Roper, Phoenix Police, Maricopa County Attorney to use $2.7M in Grants to Help Test Rape Kits, The Arizona Republic (Oct. 4, 2016) http://www.azcentral.com/story/news/local/phoenix/2016/10/04/phoenix-police-maricopa-county-attorney-grants-test-rape-kits/91549272/.

[17] Id.

[18] Id (quoting Mary Roberts, Phoenix Police Assistant Chief).

[19] Detroit, End the Backlog, http://www.endthebacklog.org/detroit (last visited Nov. 12, 2016).

[20] Id.

[21] Id.

[22] Chavez, supra note 2.

2016 Presidential Election shows U.S has a long way to go toward for respect for Women’s Equality.

By: Rebecca Banes

The 2016 U.S. presidential election cycle lasted for well over a year.[1] Women’s’ rights were at the forefront from the get go, with democrat Hilary Clinton running and becoming the first female major party nominee for President of the United States.[2] In the weeks leading up to Election Day, the focus on women’s rights intensified. The issues at stake included abortion rights, women’s health care, equal pay, and even their right to vote.

 

On October 12, 2016 #Repealthe19th was trending on Twitter.[3] The hashtag referenced the 19th Amendment to the U.S. Constitution, which gave women the right to vote.[4] The hashtag started in response to a tweet by FiveThiryEight’s Nate Silver.[5] Silver tweeted electoral maps showing projected presidential election results based on two different scenarios: if only women could vote and if only men could vote.[6] The maps showed that if only women could vote, Hillary Clinton would win the presidency, and if only men could vote, Republican candidate Donald Trump would win the presidency.[7] Apparent Trump supporters, both male and female, then used the statistics to justify why women should lose their right to vote.[8] For example, one Twitter user tweeted, “I would be willing to give up my right to vote to make this happen #repealthe19th.”[9]

 

Once Twitter users became aware of the hashtag, it became trending.[10] However, many tweets featuring the hashtag were not calling for women to lose their right to vote. Instead, many #Repealthe19th hashtags were expressing anger and frustration.[11] Twitter users who opposed repealing the women’s right to vote turned the hashtag around and used it to support women’s suffrage, mock the apparent anti-feminists, and generally criticize the sentiment behind #Repealthe19th. One of the many such tweets included, “Is this 2016 or 1916? Women fought for and won the right to vote. You can’t do takesies-backsies. #repealthe19th.”[12]

 

Based on the reality that the majority of tweets featuring #Repealthe19th were actually mocking that very idea, many people were quick to note that there should not be much concern that Americans actually want to take away the women’s right to vote.[13] Some reports were also quick to point out that repealing the constitutional amendment is unpractical, especially before Election Day 2016.[14] Despite these valid arguments, it is still significant that the topic of women’s right to vote was the subject of such heated discussions in a 21st century election cycle.

 

After a long battle, the women’s suffrage movement won women the right to vote in 1920. Women have also fought for and secured more freedoms and rights, including the right to own property, the right to have credit and bank accounts in their own name, the right to have access to birth control and health care, and the right to choose to have an abortion.[15] All of these rights were secured in one way or another long before the 2016 election cycle, and yet one of the most pervasive themes of the election was women’s rights. Before the primary elections were over, the U.S. Congress was voting for at least the eighth time to defund Planned Parenthood.[16] The Republican presidential candidate, and eventual President-elect was caught on tape describing sexual exploitations of women and has been accused of sexually harassing multiple women.[17] The democratic nominee, meanwhile, was under fire for her husband’s past affairs and allegations of sexually harassment and abuse.[18] The final presidential debate became heated over late term abortions, and Trump has promised to appoint Supreme Court nominees who will overturn Roe v. Wade.[19]

 

It is curious whether the women who fought for their right to vote in the early 20th century could have foreseen women today facing the issues they do. Perhaps they could have, perhaps not. Either way, Election Day is not going to magically settle any of these issues. The long, drawn out 2016 election cycle has demonstrated that there is widespread disagreement over vital issues facing American women, and that the country has a long way to go when it comes to protecting and securing women’s rights.

 

[1] Paul Steinhauser, Is 2016 election starting earlier than 2012 did?, CNN (Apr. 11, 2014, 5:06 PM), http://www.cnn.com/2014/04/11/politics/2016-early-cycle/.

[2] Carrie Dann, Hillary Clinton Becomes First Female Nominee of Major U.S. Political Party, NBC News (July 27, 2016 , 3:04 AM), http://www.nbcnews.com/storyline/2016-conventions/hillary-clinton-becomes-first-female-nominee-major-u-s-political-n617406.

[3] Alanna Vagianos, Trump Supporters Tweet #Repealthe19th After Poll Shows He’d Win if Only Men Voted, The Huffington Post, http://www.huffingtonpost.com/entry/trump-supporters-tweet-repealthe19th-after-poll-shows-hed-win-if-only-men-voted_us_57fea03ce4b05eff55814a75 (last updated Oct. 25, 2016).

[4] U.S. Const. amend. XIX.

[5] Seema Mehta, Trump backers tweet #Repealthe19th after polls show he’d win if only men voted, Los Angeles Times (Oct. 12, 2015, 12:15 PM), http://www.latimes.com/nation/politics/trailguide/la-na-trailguide-updates-trump-backers-tweet-repealthe19th-1476299001-htmlstory.html.

[6] Nate Silver (@NateSilver538), Twitter (Oct. 11, 2016, 3:36 PM), https://twitter.com/NateSilver538/status/785972385836961792; Nate Silver (@NateSilver538), Twitter (Oct. 11, 2016, 3:37 PM), https://twitter.com/NateSilver538/status/785972580301742080.

[7] Id.

[8] Mehta, supra note 5.

[9] CT Christian 4 Trump (@PrayHealourland), Twitter (Oct. 12, 2016, 11:44 AM), https://twitter.com/PrayHealourland/status/786276418271506432.

[10] Abby Ohlheiser, Yes, #Repealthe19th trended – but not for the reasons you think, The Washington Post (Oct. 13, 2016), https://www.washingtonpost.com/news/the-intersect/wp/2016/10/13/yes-repealthe19th-trended-but-not-for-the-reasons-you-think/.

[11] Id.

[12] Hannah (@hannahprince), Twitter (Oct. 12, 2016, 2:12 PM), https://twitter.com/hannahnprince/status/786313619655000064.

[13] Abby Ohlheiser, Yes, #Repealthe19th trended – but not for the reasons you think, The Washington Post (Oct. 13, 2016), https://www.washingtonpost.com/news/the-intersect/wp/2016/10/13/yes-repealthe19th-trended-but-not-for-the-reasons-you-think/; see also Kim LaCapria, Donald Trump Supporters are Calling to #Repealthe19th?, snopes.com (Oct. 13, 2016), http://www.snopes.com/2016/10/13/donald-trump-supporters-repealthe19th/ (explaining that media outlets were using the hashtag as evidence that a movement to repeal the 19th movement had begun but that they found no evidence that was true).

[14] Kim LaCapria, Donald Trump Supporters are Calling to #Repealthe19th?, snopes.com (Oct. 13, 2016), http://www.snopes.com/2016/10/13/donald-trump-supporters-repealthe19th/.

[15] Timeline of Legal History of Women in the United States, National Women’s History Project, http://www.nwhp.org/resources/womens-rights-movement/detailed-timeline/ (last visited Nov. 2, 2016).

[16] Laura Bassett, Congress Votes Yet Again to Defund Planned Parenthood, The Huffington Post (Jan. 6, 2016), http://www.huffingtonpost.com/entry/congress-votes-defund-planned-parenthood_us_568d5a67e4b0cad15e62fda6.

[17] David Fahrenthold, Trump recorded having extremely lewd conversation about women in 2005, The Washington Post (Oct. 8, 2016), https://www.washingtonpost.com/politics/trump-recorded-having-extremely-lewd-conversation-about-women-in-2005/2016/10/07/3b9ce776-8cb4-11e6-bf8a-3d26847eeed4_story.html.

[18] Shawn Boburg, Enabler or family defender? How Hillary Clinton responded to husband’s accusers, The Washington Post (Sept. 28, 2016), https://www.washingtonpost.com/local/enabler-or-family-defender-how-hillary-clinton-responded-to-husbands-accusers/2016/09/28/58dad5d4-6fb1-11e6-8533-6b0b0ded0253_story.html.

[19] Dan Mangan, Trump: I’ll appoint Supreme Court justices to overturn Roe v. Wade abortion case, CNBC (Oct. 19, 2016), http://www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html.

The Business of Burdens: Religious Contraceptive Accommodations Under the ACA

By: John Burnett

 

Contraceptive Mandate and Exceptions

Under the Patient Protection and Affordable Care Act[1] (ACA) as passed, the Department of Health and Human Services was charged with determining the forms of female contraception that would be required[2] in nearly all employment-based health plans. The chosen twenty contraceptives recommended by the Institute of Medicine and approved by the FDA, include sixteen methods that prevent fertilization and four methods (two IUDs, Plan B, and Ella) that prevent implantation of an egg after fertilization[3]. Religious institutions (churches, synagogues, mosques, etc.) were automatically exempt from providing these contraceptives as part of their plans and religious non-profits were required only to submit a form to their insurers stating that they objected on religious grounds and the non-profit would be relieved of the requirement[4]. For exempted or waived entities, the insurance provider would step in to cover the cost of the contraceptives for the employees. This compromise sought to balance the ethics of religious non-profit institutions with the right of women to keep the medical options to which they are entitled, while also allowing insurance companies to maintain cost-effective preventative care to their customers.

For-profit companies, however, were originally not entitled to any waiver and if they objected the requisite contraceptive funds would be passed on to the employee in the form of an increased wage to compensate or the company would face substantial fines[5]. In 2012 Hobby Lobby Stores of Oklahoma, a closely held[6] corporation with hundreds of stores across the country, sued against implementing four[7] of the contraceptive methods it found to be tantamount to abortion and therefore in violation of its Christian beliefs[8].  Hobby Lobby sued under the Religious Freedom Restoration Act of 1993 (RFRA)[9] claiming its free exercise of religion would be illegally burdened by either compliance, or alternatively, the fee charged for noncompliance. RFRA is a federal statute that prohibits the Government from “substantially burdening” a person’s exercise of religion unless the Government demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest[10].

The Supreme Court eventually heard Hobby Lobby’s case and ruled in part that religious beliefs and claims under RFRA are not forfeited by forming a closely held corporation as the Green family had done with Hobby Lobby[11]. Further, the Court ruled that the contraceptive mandate was not the “least restrictive means” of achieving the government’s purpose and therefore was an excessive burden on Hobby Lobby’s exercise of religion in violation of RFRA[12]. Justice Alito writing for the 5-4 majority posited that the government did not need to spend extra resources on establishing a new, “least restrictive,” alternative for religious for-profits because it had already created a “less restrictive means” in the form of the religious non-profit waiver accommodation[13]. Justice Alito reasoned that extending the waiver accommodation to for-profit, closely held religious companies was the best of both worlds because it allowed companies to remain pious while shifting the burden of cost onto the insurance companies and not onto the female employees[14]. Justice Alito further dismissed the dissent’s concern that the ruling would allow for-profit corporations to opt-out of any law they found disagreeable while claiming purely pretextual religious reasons[15].

 

Shifting the Burden

Just days after Justice Alito stated that the non-profit workaround “achieves all of the government’s aims while providing greater respect for religious liberty,[16]” while dismissing the concerns of the dissent, the Court directly undermined those sentiments by granting an emergency injunction to Wheaton College hours before the Court’s summer recess[17]. Wheaton sought injunctive relief to opt-out of the accommodation waiver contending that their signature on the form made them party to the perceived sin of contraception and burdened their exercise of religion[18]. Wheaton argued that since their signature on the accommodation form would causally trigger the insurance company to step in and provide the contraceptives they found sinful, they would be directly complicit[19]. Justice Sotomayor, joined by Justices Ginsburg and Kagan, added a fiery dissent to the unsigned emergency injunction calling attention to the fact that the slippery slope warned in the dissent of Hobby Lobby was quickly coming to pass with more accommodations for religious institutions and little to no consideration of the rights of women to comprehensive healthcare[20].

Not long after the injunction for Wheaton was granted other religious non-profits came forward, as Justice Sotomayor projected, objecting to having to sign the waiver and in the 2015 term the Court heard the issue under the consolidated cases of Zubik[21]. The Supreme Court heard oral arguments for Zubik in March and in a highly unusual move it did not rule on the merits, but instead sent the issue back to the lower court instructing the parties to again attempt to find a compromise[22]. The Court, previously quick to rule farther and faster than required on granting religious accommodations appeared suddenly to become indecisive. Many speculate that the sudden death of Justice Scalia, and the subsequent 4-4 ideological split of the Court, is the reason for the Court’s reluctance (or inability) to hand down a decision on the issue leaving injunctions in place until the appointment of a 9th justice[23].

 

No Resolution

While the Court tries to buy time with Zubik, the effects of previous decisions are being felt both in pending cases as well as in other areas of society. In August the rationale of Hobby Lobby was relied on by a U.S. District Judge in Detroit to rule that a funeral home was “well within its rights to fire a transgender employee because its owner had a religious belief that gender transition violated biblical teachings.”[24]  Until a full Supreme Court is restored it will be difficult to predict which way the law will go or to resolve the current hodgepodge of vaguely defined parameters.

The uncertainty of current precedent makes it difficult for the government, religious institutions, or insurers to know how to proceed in providing contraceptives to women as part of the healthcare they are entitled to. Until the recent stalemate of the court, the move has been to privilege the religious beliefs of institutions, relying on implicit religious evidence, over the reproductive rights of American individuals. The vacillation over burdens and accommodations obscures the fact that these discussions place women by the wayside and treat their agency and health as an inconvenience rather than a right. Birth control is an essential piece of a woman’s healthcare and it should not be bargained over or impugned regardless of how strong an employer’s religious views are.

[1] 42 USCS § 18001 (2016).

[2] 42 U. S. C. §300gg–13(a)(4) (2016).

[3] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2765 (2014).

[4] Id. at 2759.

[5] Id. at 2765.

[6] Hobby Lobby is owned privately and entirely by the Green family. Id. at 2765.

[7] The two IUDs, Plan B, and Ella. Id. at 2777.

[8] Id. at 2759.

[9] 42 USCS § 2000bb (2016).

[10] 42 U. S. C. §§2000bb–1(a),(b) (2016).

[11] Hobby Lobby Stores at 2759.

[12] Id.

[13] Id. at 2782.

[14] Id.

[15] Id. at 2761

[16] Dahlia Lithwick & Sonja West, Quick Change Justice, Slate (Sep. 19, 2016, 6:15 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2014/07/wheaton_college_injunction_the_supreme_court_just_sneakily_reversed_itself.html.

[17] Wheaton College v. Burwell, 134 S. Ct. 2806 (2014).

[18] Dahlia Lithwick & Sonja West, Quick Change Justice, Slate (Sep. 19, 2016, 6:15 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2014/07/wheaton_college_injunction_the_supreme_court_just_sneakily_reversed_itself.html.

[19] Id.

[20] Wheaton College v. Burwell, 134 S. Ct. 2806 (2014).

[21] Zubik v. Burwell, 136 S. Ct. 1557 (2016).

[22] Ariane de Vogue, Supreme Court sends Obamacare case back to lower court, CNN (Oct. 23, 2016, 12:47 PM), http://www.cnn.com/2016/05/16/politics/supreme-court-obamacare-contraceptive-mandate/.

[23] Id.

[24] Michael Hiltzik, Column The Supreme Court’s awful Hobby Lobby decision just spawned a very ugly stepchild, L.A. Times (Oct. 25, 2016, 3:30 PM), http://www.latimes.com/business/hiltzik/la-fi-hiltzik-hobby-child-20160819-snap-story.html.

 

Reproductive Tourism: The Globalization of Artificial Reproductive Technology

By: Heather Ivery

What do you do when you want to have a baby, but it is too expensive or what you want isn’t available where you live? Take it overseas! Reproductive tourism is a phenomenon that has sprung up and expanded over the last two decades. This trend involves citizens of mainly affluent countries traveling to other countries for the use of their artificial reproductive technology industries.

Why travel for it? Cost and availability. Where are elective medical procedures most expensive? The U.S. and Europe. It should come to no surprise then that U.S. and European citizens are choosing to travel outside of their countries for the procedures that will get them the same outcome for much cheaper, or using the laws in other countries to skirt their own.

Some people are using reproductive tourism to bypass laws and restrictions in their native countries. Up to a quarter of multi-fetal pregnancies from artificial reproduction in England originate from outside of the U.K.[1] People from the U.K. (as well as many other countries) are limited to only implanting up to two embryos, while countries like the US have no legal limit. The more embryos that are implanted, the better the chance that one will attach to the uterine wall. It comes to no surprise that people wish to implant ore embryos per cycle, even at the risk that they will all attach, and a multi-fetal pregnancy will occur.

In Canada and the U.K., egg donors are true donors – they cannot be monetarily compensated.[2] These types of donors are pretty rare, as the process is not painless and does have potential complications. In the U.S., egg donors can be paid an average of $5,000 per donation cycle and can go beyond $35,000 for well qualified donors.[3] This causes people from Canada and the U.K. to travel to the U.S. or Spain where there is a much larger supply of eggs.[4]

In Italy, people are only allowed to use fresh specimens in in vitro fertilization, rather than the much more common frozen means most countries allow.[5] This lowers the amount of eggs available, as donors are given hormones so they are able to donate multiple eggs at once, which can be frozen and divided among recipients. This also makes implantation more difficult, as the egg donor and the recipient of the egg need to both be in a similar stage of their menstrual cycle for implantation to be successful, which is easily done when an egg can be frozen then later thawed when the recipient is in the optimal stage of their cycle for implantation.

The U.S. is in an interesting place in this whole matter, as people both travel to and from the U.S. depending on what procedure they are after. While the U.S. has lax rules for much of the invitro fertilization procedures and egg and sperm markets, the cost of artificial reproductive technologies is steep. In the U.S., invitro fertilization on average costs $12,000 for a single cycle, while it only costs $2,000 per cycle on average in Russia.[6] This cost can quickly add up, as many recipients require multiple cycles for an egg to attach.

The biggest cost saver through reproductive tourism comes from surrogacy. People from affluent countries bring their reproductive material to poorer countries to be implanted, then in essence incubated for nine months. Women in the U.S. are compensated over $20,000 for a successful surrogacy, while women in India are compensated between $7,500 and $9,000.[7] An entire surrogacy in India using an agency can cost $28,000, while a surrogacy can cost over $100,000 to complete in the U.S.[8] It comes to no surprise that American couples are choosing to take their business to India.

Reproductive tourism will continue to grow as the world becomes more interconnected, and will not likely stop until the money saved from traveling is reduced, or when laws are changed to be a bit more uniform across countries. This is an upside to globalization that many people seeking genetic babies are utilizing to their financial benefit.

[1] Judith Daar, reproductive technologies and the law 175 (Carolina Academic Press et. al eds., 2d ed. 2013).

[2] Id.

[3] David Tuller, Payment Offers to Egg Donors Prompt Scrutiny, n.y. times (May 11, 2010), http://www.nytimes.com/2010/05/11/health/11eggs.html?_r=0.

[4] Id.

[5] Judith Daar, supra note 1, at 176.

[6] Id.

[7] Douglas Pet, Make Me a Baby as Fast as you Can, Slate, (Jan. 9, 2012), http://www.slate.com/articles/double_x/doublex/2012/01/reproductive_tourism_how_surrogacy_provider_planethospital_speeds_up_pregnancies_and_lowers_costs_.html.

[8] Id.

The Headless Uber and Your Job

By: Ian King

This month marked the debut of Uber’s self-driving vehicles onto the streets of Pittsburg, PA. Uber’s limited release of driverless vehicles is just the first step in their plan of replacing the roughly 1.5 million drivers with autonomous vehicles. [1] While Uber is the first to launch public access to driverless vehicles they are not alone in the race to produce commercially available autonomous vehicles. Companies such as, Google’s Alphabet, Audi, BMW, Cadillac, Ford, GM, Mercedes-Benz, Nissan, Tesla, Toyota, Volkswagen, and Volvo have all begun conducting trials to release driverless vehicles to the public.[2] Analysts predict the launch of these vehicles beginning as early as 2020, and full-scale availability by the year 2040.[3]

In response to Uber’s recent release of autonomous vehicles, the United States Transportation Secretary Anthony Foxx met with reporters to outline the federal guidelines — known as the Vehicle Performance Guidance for Automated Vehicles.[4] The guidelines set out a 15-point safety assessment for commercial manufacturers and tech developers to address before moving forward. Concerning the assessment guidelines Foxx stated, “we have to have a level of confidence that those issues, each one of the 15, have been independently reviewed, evaluated and confirmed…It’s really creating a more open-ended type of approach.”[5] Thus, with the competition to release autonomous vehicles and government support the question is not whether autonomous vehicles will take to the roads, it is a matter of when.

So, what does this shift mean for the millions of Americans that are set to be replaced? Aside from the 1.5 million Uber drivers facing unemployment, commercial trucking is still the largest job in 29 states across the United States.[6] According to the Bureau of Labor Statistics there are approximately 3.5 million truck drivers, bringing the total number of individuals directly affected by this change to roughly 5 million.[7] Moreover, looking beyond the road ways to the other industries reliant on trucking such as, this number increases to the tens of millions.

To analyze this employment issue it is helpful to consider the predicted benefits versus the costs of implementing autonomous vehicles.  Next, I will use the trucking industry to illustrate what this shift may mean for the millions of Americans with their jobs at risk. Finally, I will consider possible solutions to the looming rise in unemployment.

Benefits v. Costs

The predicted benefits of self-driving vehicles include reduction in traffic and parking, decreases in emissions and pollution, enabling disabled as well as other non-drivers a mode of transport, reducing roadway costs, and making roadways safer.[8] While many of these benefits are purely speculative, advocates for driverless cars are using driver safety as their major selling point. According to the National Highway Traffic Safety Administration, over 40% of all vehicular accidents can be attributed to some form of human error.[9] The shift to driverless vehicles could drastically improve these figures and perhaps reduce the number of human lives lost on U.S. roadways every year. With the prospect of reducing the loss of human life, it is easy to see why the government would be so quick to jump on the autonomous vehicle band wagon. However, these benefits may not be as substantial as advocates predict and do not come without costs.

Among the potential costs are, increased costs for consumers looking to maintain vehicles integrating this technology, security and privacy concerns, social equality issues with affordability and accessibility, uncertainty with insurance coverages and liabilities, and reduced employment.[10] Similar to some of the predicted benefits above, some of the potential costs are without hard and fast data to support them. However, there are solid figures for the number of individuals facing possible unemployment, and it is a major concern for implementation.

Replacing Skilled Labor

The process of replacing workers with machines and later with fully autonomous systems characterizes the pursuit of profits through cutting costs and maximizing benefits.  Unskilled labor has continually been replaced as technology improves and processes become automated. However, skilled labor required for more complex tasks has been a major obstacle for developers looking to further automate the workplace. Operating and navigating a 40-ton machine along roadways is without a doubt a complex task, and has until now been reserved to the domain of skilled human laborers.

The trucking industry in particular raises major concerns because it is still the largest profession in over half of the United States. According to the United States labor institute, truck drivers are among the last high paying careers not requiring a secondary degree.[11] If autonomous trucks were to replace the millions of truck drivers today, then we would face a major employment crisis for both the current and future drivers.

The problem with replacing all of these workers is that many of them have no other means of making a living and supporting their family. Transitioning to other careers or returning to school is not likely to be a viable option for many of these workers. Figures from the department of labor show that there are currently 7,849,000 unemployed in the United States.[12]

Without a means to make a living the millions of unemployed would likely turn to government assistance, which would increase the strain on an already overburdened welfare system. While others may turn to pursue secondary education, they would be entering an oversaturated job market. Applying this same fact pattern to the millions of taxi cab drivers, Uber drivers, and those reliant on trucking and transportation, this problem has the potential of becoming a much larger issue beyond unemployment.

Solutions?

Policy makers and businesses need to effectively plan for this major shift in transportation to avoid causing a chain of events leading to mass unemployment and other unforeseen effects. While autonomous vehicles are some among the newest threats to job security, workers being displaced through automation is not a new phenomenon. Researchers and policy planners studying the topic have proposed several possible solutions to the problem including, improved access to education, promoting entrepreneurs, increasing technical training, and a basic/universal income.[13] However, there remain major obstacles to implementing these solutions. Specifically, unemployment in the trucking industry represents an interstate issue that would not be restricted to a particular region of the United States. Therefore, effective solutions require coordination between states and with the Federal government.

Although all of these solutions include challenges of their own, the problem they would alleviate clearly outweigh the possible costs for planning and implementation. Tens of millions of workers would have the capability of finding purpose and work outside of the careers lost to driverless cars. In addition, implementation would also provide a framework for future workers pushed out by automization.

Technology is continually moving forward and accomplishing tasks once done by workers for cents on the dollar. With stakes this high the policy makers should begin planning for the future of the millions of workers soon to be unemployed. With the recent forecasts by experts and policy makers alike, the question is, how long before the headless Uber becomes the headless trucker?

[1] Heather Sommerville, Uber debuts self-driving vehicles in landmark Pittsburgh trial, Reuters (Sept. 14, 2016), http://www.reuters.com/article/us-uber-autonomous-idUSKCN11K12Y.

[2] Daniel Fagnant & Kara Kockelman, Preparing a Nation for Autonomous Vehicles: Opportunities, Barriers, and Policy Recommendations for Capitalizing on Self-Driven Vehicles, Eno Ctr. For Transp. 2, 1-20 (2013).

[3] Todd Litman, Autonomous Vehicle Implementation Predictions: Implications for Transport Planning, Victoria Transport Pol’y Inst. 36-42 (2014).

[4] Melissa Nann Burke & Michael Wayland, Feds announce unprecedented autonomous car guidelines, Det. News (Sept. 20, 2016), http://www.detroitnews.com/story/business/autos/

2016/09/19/feds-announce-unprecedented-autonomous-vehicle-guidelines/90716884.

[5] Id.

[6] Joel Lee, Self Driving Cars Endanger Millions of American Jobs (And That’s Okay), Future Tech (Jun. 19, 2015), http://www.makeuseof.com/tag/self-driving-cars-endanger-millions-american-jobs-thats-okay.

[7] Olivia Solon, Self-Driving trucks: What’s the future of America’s 3.5 million truckers?, Guardian (Jun. 17, 2016), https://www.theguardian.com/technology/2016/jun/17/self-driving-trucks-impact-on-drivers-jobs-us.

[8] Litman, supra note 3 at 4.

[9] Fatal Analysis Reporting System, Nat’l Highway Traffic Safety Admin. (2012).

[10] Litman, supra note 3 at 4.

[11] Lee, supra note 6.

[12] Labor Force Statistics from the Current Population Survey, Bureau Labor Stat., http://www.bls.gov/cps/tables.htm#empstat (last modified Mar. 24, 2016).

[13] Solon, supra note 7.

An Uber Problem in Employment Law

By: Alexis Wood

Uber is considered a safe way to get home from the bar after a night out with friends or convenient transportation to the airport. However, the popular ride-sharing company has recently become subject to class-action lawsuits arising out of one simple question: Are Uber drivers employees or independent contractors? Worker misclassification can have serious effects. “Generally, you must withhold income taxes, withhold and pay Social Security and Medicare taxes, and pay unemployment tax on wages paid to an employee. You do not generally have to withhold or pay any taxes on payments to independent contractors.”[1]

How to Classify Employees

Courts have delineated various methods for determining how to classify a worker. For example, according to the Ninth Circuit, “the degree of control which the alleged employer may or could exercise over the details of the service rendered to the business by the workers, the opportunities of the workers for profit or loss, their investment in the facilities for work, the permanency of the relation and the skill required are factors which are weighed in making the judicial determination of the relationship, but no one of these factors is controlling, nor are the courts precluded from giving consideration to other factors which bear logically upon the issue of the workers’ actual economic dependence upon the business of the alleged employer.”[2]

Generally, the more control a company has over the workers, the more likely those workers will be classified as employees. “Control” can come in a variety of ways and there are three general categories of “facts that provide evidence of the degree of control.”[3] First, Behavioral facts are facts that evidence the control the company has over its workers’ behavior.[4] Second, Financial facts demonstrate whether “the business aspects of the worker’s job [are] controlled by the payer.”[5] Finally, courts look at the type of relationship between the company and the worker—any contracts, employee-type benefits, etc.[6]

What Should Uber Drivers Be Considered?

On one hand, arguably the number one reason people become Uber drivers is the flexibility of schedule the company provides. With Uber, drivers do not have to have set hours. A driver could drive as often, for as long, as he chooses. This aspect seems to weigh in Uber’s favor because it makes its drivers look less like traditional employees. Another factor that weighs in Uber’s favor is that it has virtually no control over its drivers’ routes or territories.

On the other hand, Uber retains the right to terminate its drivers “at-will.” This shows that Uber retains serious control over their drivers. Additionally, the star rating system that allows Uber to monitor its drivers’ performance hints to a high degree of control (passengers rate drivers from one to five stars, five stars signaling a great experience).

In my opinion, Uber drivers should be regarded as employees. While Uber drivers have a wide degree of latitude in setting their own schedules, routes, and passengers, they are largely within the “control” of Uber. The California Supreme Court, for example, has held that “a putative employer’s right to discharge a hiree at will, without cause, is ‘[p]erhaps the strongest evidence of the right to control.’”[7] Furthermore, without the Uber interface, Uber’s drivers could not do their jobs. They could pick people up and drop them off, but the form of payment is through the app itself. The app also dispatches drivers, without it drivers would have no idea where potential passengers were located. The degree of control the Uber app itself has over the Uber drivers’ ability to work and be compensated for that work makes me feel that the drivers are employees.

Current State of the Law

The current class-action lawsuit against Uber in California obtained class certification in September 2015.[8] Approximately 160,000 drivers make up the putative class. A settlement of $100 million as well as injunctive relief of policy changes was agreed upon; however, the trial judge refused to approve the settlement.[9] The Ninth Circuit ruled that Uber’s arbitration clause was enforceable.[10] An appeal is pending on the matter.[11] If the ruling stands, the trial would include only those drivers that opted out of the arbitration clause.[12]

[1] Independent Contractor (Self-Employed) or Employee?, IRS, https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee (last updated Jul. 7, 2016).

[2] Westover v. Stockholders Pub. Co., 237 F.2d 948, 951 (9th Cir. 1956).

[3] Independent Contractor (Self-Employed) or Employee?, IRS, https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee (last updated Jul. 7, 2016).

[4] Id.

[5] Id.

[6] Id.

[7] O’Connor v. Uber Technologies, Inc., No. C–13–3826 EMC, 2015 WL 5138097, at *19 (N. D. Cal. Sept. 1, 2015).

[8] Id.

[9] http://uberlawsuit.com/ (last visited Oct. 7, 2016).

[10] Id.

[11] Id.

[12] Id.