//  3/11/19  //  Commentary

Because this administration and its supporters have no shame, they have started justifying the administration’s efforts to make the immigration system more draconian (either by modifying the rules regarding asylum applications, or in constructing a wall) by pointing to the horrific sexual abuse that migrants face.  In his January address proposing a non-existent “compromise” on immigration to reopen the government, the President announced that one in three women are sexually assaulted on their journey to the United States. Ronna Romney McDaniel recited the same statistic on Twitter.  And in his rose garden conference announcing the actual compromise on the shutdown, the President again purported to express concern for the violence that women and girls may face on their journeys to the United States. Then, at the CPAC conference last week, the President proclaimed that, because of the risks that women face in making the journey to the United States, they are taking "massive amounts of" birth control pills to guard against the risk of pregnancy. (Side note: That is not how birth control works. But it is utterly unsurprising that a man who is actively working to limit access to contraception would not understand how it works.)

It would be one thing if those statements reflected the administration’s sincere concern for victims of sexual assault.  But the administration's other actions make clear that it has no such concerns or empathy. As Abigail DeHart and I wrote last summer, the administration recently took the step of reversing the Department Of Justice’s interpretation of asylum law to make it so that gender-based violence is no longer grounds for seeking asylum in the United States.  That is, the fact that a woman has been assaulted, and the fact that the police in her home state cannot protect her from being assaulted again, isn’t sufficient to make out a claim for asylum.  (“[The administration’s memo] underscores: ‘[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.’”) In other words, the administration is refusing to provide a safe haven for women who face continued risk of domestic violence or sexual assault in their home countries or elsewhere. The administration has also made it harder for them to apply for asylum in other ways as well (by attempting to modify asylum eligibility and criteria). The administration is also apparently unconcerned with how these women may be victimized *once they arrive in the United States* --including by customs and border patrol officials--because of the dysfunctional  immigration enforcement scheme that makes it harder for them to report their abuse.

This juxtaposition is emblematic of the bad faith, concern trolling that this administration and its defenders repeatedly use--often related to issues of gender (though not always! As Susan Hennessey recently observed, "The GOP ran a TWO YEAR campaign on sacred devotion to the protection of classified information. They now have no concerns and no follow up questions about Trump's own staff saying Kushner poses a security threat?"). Take the President's unsubstantiated claim that mothers are giving their daughters extra birth control pills for their journey to the United States because they know their daughters face a high risk of being raped. Bracketing whether that is true, this administration is currently attempting to make it easier for employers to deny women birth control under employer-sponsored health insurance programs.  It is also attempting to eliminate from the Title X program any medical provider who provides abortions or offers referrals to abortion providers, which would drastically reduce access to contraception in some parts of the United States. An administration that actually cared about women’s ability to control whether they became pregnant or not would act differently.

The administration's argument about gender violence and immigration harkens back to one of the more demoralizing examples of this administration’s hypocrisy (again related to issues of gender)--when the President seized on the misconduct allegations against Al Franken. The allegations against Franken included unwanted kissing, touching, and groping-- the same kinds of allegations that have been made against the President. Only in the President's case there is an audio tape, rather than photographs, and there are more accusers. The President insisted Franken should be ashamed of himself and resign from the Senate, and other Republicans made the same claim. Yet they refuse to hold the President to account for similar allegations against him.

It’s not hard to see the bad faith here. No one should take seriously the administration’s concerns about gender equity. They simply do not exist.



Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

Take Care

June Medical As The New Casey

6/29/20  //  Quick Reactions

As in prior abortion cases, the Chief Justice gave abortion supporters a victory while at the same time laying the groundwork for much weaker protections for abortion rights.

Leah Litman

Michigan Law School