Human Rights

As President-elect Donald J. Trump prepares to implement sweeping policy changes affecting American immigration and immigrants, one of the issues under scrutiny by his allies appears to be birthright citizenship – the declaration in the 14th Amendment to the Constitution that anyone born on U.S. soil is a U.S. citizen, regardless of their parents’ nationalities or immigration status.

Some prospective members of Trump’s team, including anti-immigration advisers Stephen Miller and Thomas Homan, have said they intend to stop issuing federal identification documents such as Social Security cards and passports to infants born in the U.S. to undocumented migrant parents, according to The New York Times.

This first step down a path to deny citizenship to some individuals born in the United States reflects a conflict that’s been going on for nearly 200 years: who gets to be an American citizen.

Debates in American history over who gets citizenship and what kind of citizenship they get have always involved questions of race and ethnicity, as we have learned through our individual research on the historical status of Native Americans and African Americans and joint research on restricting Chinese immigration.

Nonetheless, even in the highly racialized political environment of the late 19th century, the U.S. Supreme Court endorsed an expansive view of birthright citizenship. In an 1898 ruling, the court decreed that the U.S.-born children of immigrants were citizens, regardless of their parents’ ancestry.

That decision set the terms for the current controversy, as various Republican leaders, U.S. Sens. Tom Cotton of Arkansas and Marsha Blackburn of Tennessee, as well as Vice President-elect JD Vance, have claimed that they will possess the power to overturn more than a century of federal constitutional law and policy and deny birthright citizenship.

Citizenship by birth

Dred Scott, around 1857, when he sued seeking freedom from slavery for himself, his wife and their two children. Wikimedia Commons

Most citizens of the U.S. are born, not made. Before the Civil War, the U.S. had generally followed the English practice of granting citizenship to children born in the country.

In 1857, though, the Supreme Court had decided the Dred Scott v. Sandford case, with Chief Justice Roger Taney declaring that people of African descent living in the U.S. – whether free or enslaved, and regardless of where they were born – were not actually U.S. citizens.

After the Civil War, Congress explicitly rejected the Dred Scott decision, first by passing legislation reversing the ruling and then by writing the 14th Amendment to the Constitution, which specified that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

This broad language intentionally included more than just the people who had been freed from slavery at the end of the Civil War: During legislative debate, members of Congress decided that the amendment should cover the children of other nonwhite groups, such as Chinese immigrants and those identified at the time as “Gypsies.”

The Congressional Record shows the House and Senate votes on the 14th Amendment. Edward McPherson, Clerk of the House of Representatives of the United States/Wikimedia Commons

Still barring some people from citizenship

This inclusive view of citizenship, however, still had an area judges hadn’t made clear yet – the phrase “subject to the jurisdiction thereof.” In 1884, the Supreme Court had to interpret those words when deciding the case of a Native American who wanted to be a citizen, had renounced his tribal membership and attempted to register to vote.

The justices ruled that even though John Elk had been born in the U.S., he was born on a reservation as a member of a Native American tribe and was therefore subject to the tribe’s jurisdiction at his birth – not that of the United States. He was, they ruled, not a citizen.

In 1887, Congress did pass a law creating a path to citizenship for at least some Native Americans; it took until 1924 for all Native Americans born on U.S. soil to be recognized as citizens.

A U.S. immigration photo of Wong Kim Ark, taken in 1904. U.S. National Archives

The text of the 14th Amendment also became an issue in the late 19th century, when Congress and the Supreme Court were deciding how to handle immigrants from China. An 1882 law had barred Chinese immigrants living in the U.S. from becoming naturalized citizens. A California circuit court, however, ruled in 1884 that those immigrants’ U.S.-born children were citizens.

In 1898, the Supreme Court took up the question in United States v. Wong Kim Ark, ultimately ruling that children born in the U.S. were, in the 14th Amendment’s terms, “subject to the jurisdiction” of the United States, so long as their parents were not serving in some official capacity as representatives of a foreign government and not part of an invading army. Those children were U.S. citizens at birth.

This ruling occurred near the peak of anti-Chinese sentiment that had led Congress to endorse the idea that immigration itself could be illegal. In earlier rulings, the court had affirmed broad powers for Congress to manage immigration and control immigrants.

Yet in the Wong Kim Ark ruling, the court did not mention any distinction between the children of legal immigrants and residents and the children of people who were in the United States without appropriate documentation. All people born in the United States were automatically simply citizens.

The long reach of Wong Kim Ark

John Fitisemanu, born in American Samoa, was the lead plaintiff in a lawsuit seeking formal U.S. citizenship. John Fitisemanu/Twitter

Since the Wong Kim Ark ruling, birthright citizenship rules haven’t changed much – but they have remained no less contentious. In 1900 and 1904, leaders of several Pacific islands that make up what is now American Samoa signed treaties granting the U.S. full powers and authority to govern them. These agreements, however, did not grant American Samoans citizenship.

A 1952 federal law and State Department policy designates them as “non-citizen nationals,” which means they can freely live and work in the U.S. but cannot vote in state and federal elections.

In 2018, several plaintiffs from American Samoa sued to be recognized as U.S. citizens, covered by the 14th Amendment’s provision that they were born “within” the U.S. and therefore citizens. The district court found for the plaintiffs, but the 10th U.S. Circuit Court of Appeals reversed, ruling that Congress would have to act to extend citizenship to territorial residents.

A new debate has ignited over whether Congress has the power to alter birthright citizenship, and even over whether the president, either through an executive order or through directing the State Department not to recognize some individuals as citizens, can change the boundaries around who gets to be a citizen. Efforts to alter birthright citizenship are sure to provoke legal challenges.

Trump is just the latest in a long line of politicians who have objected to the fact that Latin American immigrants who come to the U.S. without legal permission can have babies who are U.S. citizens. Most legal scholars, even those who are quite conservative, see little merit in claims that the established rules can be altered.

At least until now, the courts have continued to uphold the centuries-long history of birthright citizenship, dating back to before the Constitution itself and early American court rulings. But if the Trump administration pursues the policies that key figures have discussed, the question seems likely to reach the Supreme Court again, with the fundamental principle hanging in the balance.

This article includes material previously published on Jan. 15, 2020.

Carol Nackenoff, Richter Professor Emerita of Political Science, Swarthmore College and Julie Novkov, Professor of Political Science and Women’s, Gender and Sexuality Studies, University at Albany, State University of New York

This article is republished from The Conversation under a Creative Commons license. Read the original article.

President-elect Donald Trump made it clear on the campaign trail that the mass-deportation of immigrants illegally in the United States would be among his first priorities.

But just how Trump would remove the estimated 11 million people in the U.S. without legal authorization remains unclear. How would the process be carried out? Would families be separated? And which agencies would carry out the arrests and detentions?

The latest Meredith Poll underscores how concerned North Carolinians are about the ability to control illegal immigration.

Asked how concerned they were by the number of people entering the U.S. illegally, a plurality of Democrats indicated they are extremely concerned (27%) or very concerned (21.3%), with more than 71% of Republicans indicating that they are extremely concerned or very concerned (16.1%).

As far as how to best address illegal immigration, 82% said they supported using technology and increasing the number of border agents.

When it comes to completing the wall along the southern border, over 90 percent of Republican respondents agree with this solution, compared to less than 48 percent of Democrats. Less than 63 percent of unaffiliated voters said they would support the support wall’s completion.

The poll found strong support for arresting and deporting undocumented immigrants with a criminal record.

But if the only crime was entering the United States without proper documentation, that’s where North Carolinians have their differences.

While over 73 percent of Republican respondents favor arresting and deporting undocumented persons who have not committed a violent or property crime, only a little over 38 percent of Democratic respondents would support these arrests and deportations. Just over 45 percent of unaffiliated voters would support this as a solution.

Use of the military to enforce Trump’s immigration policies

Notably, 60 percent of the respondents in the Meredith poll support using military personnel to enforce immigration policy initiatives. Support for using sheriffs and local law enforcement personnel is even stronger with 65 percent of those polled supporting this option. A little more than one-third (34%) said they opposed the military being used for this purpose.

In terms of age groups, the poll finds less than half of Gen Z voters support the use of military personnel to enforce immigration policy (49.2%) whereas the oldest generation of respondents were overwhelmingly supportive of the use of the military (80.1%) and local law enforcement personnel (85.1%) for immigration enforcement.

The construction industry has voiced concerns about how mass deportation would harm the industry. (File Photo)

“The support for using military and local law enforcement to assist in immigration enforcement speaks to the gravity of the issue in citizens’ minds,” said David McLennan, director of the Meredith Poll. “In North Carolina, Democrats have stood up against House Bill 10, which forces sheriffs and local law enforcement to assist ICE in detaining immigrants. Democratic voters we polled, however, see the utility in using military and law enforcement in this effort.”

According to the Brookings Institution, 60% of the undocumented have lived in the U.S. for at least a decade.

So, should those who are undocumented and leading otherwise lawful, productive lives be swept up in these deportations?

According to the Meredith poll, a majority of respondents indicated their support for allowing those brought into the country as children, the so-called DACA recipients to remain, as well as those immigrants who are now married to an American citizen.

But in this divided, purple state there are partisan differences on this issue too.

A majority of Republicans said they do not believe that being married to a U.S. citizen should protect an undocumented immigrant from deportation. Only a slight plurality of Republican respondents want DACA recipients to remain in the United States.

“The Trump administration’s plans to aggressively remove undocumented immigrants will face some headwinds, especially as if people are arrested and deported without having caused problems in the United States,” said McLennan in a press release. “If the Trump administration attempts to revoke DACA protections or start separating married couples, the immigration ‘mandate’ that Trump claims may diminish.”

This week NBC News reported that the incoming Trump administration was making plans to deport some migrants to countries other than their own when their home countries refuse to accept them back.

NC Newsline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. NC Newsline maintains editorial independence. Contact Editor Rob Schofield for questions: info@ncnewsline.com. Follow NC Newsline on Facebook and X.

While some abortion access advocates viewed the 9th U.S. Circuit Court of Appeals’ ruling this week in a case over so-called “abortion trafficking” as another dismal development in their fight against anti-abortion laws, those representing the plaintiffs say it’s a clear win in the ongoing case.

A panel of three appellate judges issued an opinion Monday reversing part of the preliminary injunction blocking enforcement of Idaho’s abortion trafficking statute, which became law in 2022. The law originated from House Bill 242 and states that an adult who helps a minor procure or obtain an abortion by “recruiting, harboring or transporting” them without parent or guardian permission can be charged with a felony and face two to five years in prison. It includes those who go out of state, where the procedure is legal, such as Oregon, Washington and Montana. Idaho is the only state in the Northwest with a near-total ban on abortions.

The appellate panel said Idaho can enforce the law as it relates to “harboring or transporting” a minor, but it cannot prosecute individuals who simply provide information about where to obtain an abortion, or who provide other types of financial or logistical assistance to receive an abortion where it is legal. Those activities, the court said, could have fallen under the “recruiting” portion of the statute.

Plaintiffs’ attorney Wendy Heipt said the ruling is especially significant because it will ensure people can give accurate information to minors about their options. The minors who need that assistance the most are often the most vulnerable, she said, such as those with abusive caregivers.

“This is the first case at this level to (acknowledge that right), and that is a major victory,” Heipt said.

Legislation crafted with similar language as HB 242 became law in Tennessee earlier this year, but a judge blocked its enforcement in September with a preliminary injunction. That case is ongoing. Lawmakers in Alabama, Mississippi and Oklahoma also introduced similar legislation in 2024 that failed to advance, and the New Hampshire Bulletin reported a state Republican representative filed a similar bill ahead of the 2025 legislative session.

Portion of the case about right to interstate travel is yet to be argued

Idaho Attorney General Raúl Labrador said thedecision was a “tremendous victory for Idaho” in a statement on Monday.

“Idaho’s laws were passed specifically to protect the life of the unborn and the life of the mother,” he said. “Trafficking a minor child for an abortion without parental consent puts both in grave danger, and we will not stop protecting life in Idaho.”

He pointed out that the judges decided to reverse parts of the injunction because they think the plaintiffs are unlikely to succeed in court, which he views as a positive indication for the state’s case.

Idaho attorney Lourdes Matsumoto and two advocacy organizations, the Northwest Abortion Access Fund and the Indigenous Idaho Alliance, filed the lawsuit in July 2023 alleging the law restricts freedom of speech and the right to freely associate, and arguing it was too vague to be constitutional. Matsumoto and the staff within the advocacy organizations said the law interfered with their ability to counsel minors who are facing unplanned pregnancies, including any financial or logistical help in obtaining the abortion in another state.

U.S. 4th District Court Magistrate Judge Debora K. Grasham issued the injunction in November 2023, and Labrador appealed to the regional circuit court, which determined the injunction could only hold on the “recruiting” aspect of the law.

Heipt, of the gender equity organization Legal Voice, said there were several big wins for them in the 63-page ruling, including the affirmation that the groups have the right to sue, that the state attorney general is the right defendant, and that the recruiting part of the statute is unconstitutionally broad.

Heipt said while some took the ruling as confirmation that Idaho could restrict interstate travel through the law, that part of the statute hasn’t actually been argued in court yet and wasn’t part of the injunction or the circuit court’s opinion.

“This is a preliminary step. We have not yet had our full day in court, nor have we had a chance to explain the third prong of our argument (on) interstate travel,” she said. “That’s still coming, and I’m looking forward to it.”

Planned Parenthood representatives in Idaho call the decision ‘devastating’

Judge Margaret McKeown, the lead author of the 9th Circuit opinion who was appointed by former President Bill Clinton, wrote that the recruiting piece of the law was broad enough that it presented potential conflicts with First Amendment rights to freedom of speech. The judge said courts have deemed that protesters who try to dissuade people from entering abortion clinics are also protected under free speech laws.

“Even expressions of persuasive encouragement might be prosecuted under the statute,” McKeown wrote. “Imagine an Idaho resident who lives near the border of Oregon and displays a bumper sticker that reads: ‘Legal abortions are okay, and they’re right next door. Ask me about it!’ A minor sees the sticker and, feeling desperate, approaches the driver to request a ride across state lines.”

In that scenario, if the driver offered the minor cash for the procedure, the driver could be prosecuted for “recruiting.” McKeown added that the language also seems to encompass the ability to get a legal abortion in Idaho under one of the few exceptions, including rape and incest.

“That is, an adult concerned for the wellbeing of an underage victim of incest would be prohibited from counseling and then assisting that victim in obtaining an abortion without informing a parent — who may well be the perpetrator,” McKeown wrote.

Others in the advocacy space, such as Planned Parenthood Great Northwest Hawaii, Alaska, Indiana, Kentucky, called the decision “devastating.”

Mistie DelliCarpini-Tolman, state director of Planned Parenthood Alliance Advocates in Idaho, said the law has created a massive chilling effect among Idahoans, and the ruling is unlikely to change that problem.

“We are hearing from Idahoans out at restaurants who find out you work for Planned Parenthood and ask, ‘If I go to Oregon for an abortion and come back to Idaho, will I be arrested?’” DelliCarpini-Tolman said. “These laws, the way they interplay, are confusing to the average Idahoan, and it’s important to point out that it is intentional, to help create that chilling effect.”

DelliCarpini-Tolman added that data from an organization called Jane’s Due Process in Texas has found more than one-third of young women seeking abortions there said they feared physical, emotional or sexual abuse if their parents found out about their pregnancy.

“The numbers are there, they don’t lie, they show us the position that we’re putting young people in in Idaho,” she said. “For proponents of the bill to act like they’re trying to protect young Idahoans is the utmost hypocrisy, because those are the very people that it’s going to harm the most.”

Both sides can appeal ruling, say they’re weighing their options

Wendy Olson, an Idaho-based attorney who is also representing the plaintiffs, said both sides have two weeks to appeal the decision with the 9th Circuit, and her clients are still weighing their options. Dan Estes, spokesperson for Labrador’s office, told States Newsroom they are also considering their next move, which could include asking the U.S. Supreme Court to consider the case.

If neither side appeals, the case will proceed in district court for full arguments, but it’s unclear when that hearing would be held. Given the judges’ comments about their likelihood of victory in the case, Olson said they expect to spend time developing further evidence to strengthen their arguments for their day in court.

Washington State Standard is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Washington State Standard maintains editorial independence. Contact Editor Bill Lucia for questions: info@washingtonstatestandard.com. Follow Washington State Standard on Facebook and X.

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A state corrections officer has pleaded guilty to beating a man at a Woodbridge sex offender treatment facility — an attack his family described as “a gang-style assault” in a wrongful death lawsuit they later filed against the state.

Giuseppe Mandara, 55, of Brick, pleaded guilty Tuesday to aggravated assault for attacking Darrell Smith, 50, who died of a stroke five days after the Aug. 23, 2019, incident in a housing unit at the Adult Diagnostic and Treatment Center. The beating occurred after Smith took peanut butter, bananas, and sugar leftover from breakfast out of the kitchen, where he worked, according to the family’s lawsuit and Mandara’s attorney, Stuart Alterman.

Mandara agreed to give up his job under a plea agreement, according to the state Attorney General’s Office.

The agreement also bars him from any future public office or employment. Mandara was a correctional officer for 20 years, Alterman said. State payroll records show his annual salary reached $106,577 this year, although he hasn’t gotten a salary since last year because he was suspended without pay in July 2023.

Mandara faced up to 10 years in prison when a state grand jury indicted him in June 2023. Then, he was charged with second-degree official misconduct for abandoning his keys and radio and using excessive or unlawful force, a crime that carries a mandatory minimum of five years in prison and up to $150,000 in fines. The grand jury declined to indict Mandara on homicide charges.

The Attorney General’s Office said Wednesday that prosecutors will recommend a four-year prison sentence.

But Alterman said he instead expects Mandara will get probation because the plea agreement includes “a presumption of non-incarceration,” which is typically reserved for first-time offenders convicted of third- and fourth-degree crimes. Sentencing is set for Jan. 31.

Alterman said Mandara was a longtime officer who otherwise had a “flawless record.”

“He engaged in a fight with the inmate and perhaps was overzealous when engaging in the fight,” Alterman said. “The evidence does not demonstrate that he did anything more than strike the inmate, and the precipitant behavior was, in fact, the inmate using his position in the kitchen to commandeer materials which are normally known and used for making alcoholic beverages, or hooch, as they call it.”

Smith’s family did not respond to a request for comment.

But last year, they told the New Jersey Monitor that Mandara was one of multiple officers who taunted Smith with homophobic slurs and then jumped him in two separate attacks over one weekend, kicking, punching, slamming, and stomping him until he was unresponsive and catatonic. The officers dragged Smith to an area that was a blind spot for the facility’s surveillance cameras, the relatives said.

After the first assault, prison staff put him in solitary confinement and withheld medical treatment from him for so long that by the time they took him to a hospital, he was brain dead, his relatives said.

Their lawsuit remains ongoing.

Smith was incarcerated in the prison’s special treatment unit, where residents who have served their criminal sentences remain locked up under civil commitment because they’re considered to be not ready for reentry.

Drew Skinner, executive director of the public integrity and accountability office overseen by the attorney general, said the guilty plea shows that the state won’t ignore or condone abuses of people in state custody.

“The defendant violated the trusted position he held and will be held accountable,” Skinner said.

New Jersey Monitor is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. New Jersey Monitor maintains editorial independence. Contact Editor Terrence T. McDonald for questions: info@newjerseymonitor.com. Follow New Jersey Monitor on Facebook and X.

Attorneys who argued against Tennessee's ban on gender-affirming healthcare at the U.S. Supreme Court on Wednesday expressed hope that the court's nine justices will take "the opportunity to affirm the essential freedom and equality of all people before the law," while reports indicated that the right-wing majority is inclined to uphold the ban.

"Every day this law inflicts further pain, injustice, and discrimination on families in Tennessee and prevents them from receiving the medical care they need," said Lucas Cameron-Vaughn, staff attorney at the ACLU of Tennessee, which represented three families and a physician. "We ask the Supreme Court to commit to upholding the promises of the U.S. Constitution for all people by putting an end to Tennessee's state-sanctioned discrimination against trans youth and their families."

The law, S.B. 1, which was passed in March 2023, bars medical providers from prescribing puberty-delaying medications, other hormonal treatment, and surgical procedures to transgender minors and youths with gender dysphoria.

The Supreme Court case, United States v. Skrmetti, applies only to the ban on puberty blockers and hormonal therapy for minors; a lower court found the plaintiffs did not have legal standing to challenge the surgery ban.

The ACLU, the ACLU of Tennessee, Lambda Legal, and a law firm were joined by the Biden administration in arguing that Tennessee allows doctors to prescribe puberty blockers and other hormonal treatments for youths with congenital defects, early puberty, diseases, or physical injuries.

As such, said the plaintiffs, Tennessee's ban for transgender and nonbinary youths violates the U.S. Constitution's 14th Amendment, which guarantees equal treatment under the law.

"My heart—and the heart of every transgender advocate fighting this fight—is heavy with the weight of what these laws mean for people's everyday lives."

The court's three liberal justices—Justices Sonya Sotomayor, Elena Kagan, and Ketanji Brown Jackson—all indicated they believed Tennessee has tried to classify people according to sex or gender with the law.

"One of the articulated purposes of this law is essentially to encourage gender conformity and to discourage anything other than gender conformity," said Kagan. "Sounds to me like, 'We want boys to be boys and we want girls to be girls,' and that's an important purpose behind the law."

Matthew Rice, the lawyer representing Tennessee in the case, claimed the state simply wants to prevent "regret" among minors, and the court's six conservative justices signaled they were inclined to allow Tennessee to ban the treatments—which are endorsed by the American Academy of Pediatrics and other top medical associations.

Chief Justice John Roberts said the nine justices should not overrule the decision made by lawmakers representing Tennessee residents, considering there is debate over the issue, and pointed to changes some European countries have made to their gender-affirming care protocols for minors.

Representing the Biden administration, U.S. Solicitor General Elizabeth Prelogar acknowledged that there has been debate about gender-affirming care in the U.S. and abroad, but pointed out that countries including the U.K. and Sweden have not outright banned treatment.

"I think that's because of the recognition that this care can provide critical, sometimes lifesaving benefits for individuals with severe gender dysphoria," she said.

Following the arguments, plaintiff Brian Williams, who has a 16-year-old daughter in need of gender-affirming care, addressed supporters who had assembled outside the Supreme Court.

"Tennessee's ban on gender-affirming medical care is an active threat to the future my daughter deserves," said Williams. "It infringes not only on her freedom to be herself but on our family's love for her. We are not expecting everyone to understand everything about our family or the needs of transgender young people like our daughter. What we are asking for is for her freedom to be herself without fear. We are asking for her to be able to access the care she needs and enter adulthood knowing nothing is holding her back because of who she is."

Sotomayor said there is "very clear" evidence "that there are some children who actually need this treatment."

A 2022 study led by researchers at the University of Washington found that transgender and nonbinary youths aged 13-20 were 60% less likely to experience moderate or severe depression and 73% less likely to be suicidal after receiving gender-affirming care.

Prelogar asked the justices to "think about the real-world consequences of laws like S.B. 1," highlighting the case of a plaintiff identified as Ryan Roe.

Roe had such severe gender dysphoria that "he was throwing up before school every day," said Prelogar. "He thought about going mute because his voice caused him so much distress. And Ryan has told the courts that getting these medications after a careful consultation process with his doctors and his parents, has saved his life."

"But Tennessee has come in and categorically cut off access to Ryan's care," she added. "This law harms Ryan's health and the health of all other transgender adolescents for whom these medications are a necessity."

Tennessee is home to about 3,100 transgender teenagers, and about 110,000 transgender youths between the ages of 13-17 live in the 24 states where gender-affirming care is restricted.

More than 20 states have laws that could be impacted by the court's ruling in United States v. Skrmetti.

"My heart—and the heart of every transgender advocate fighting this fight—is heavy with the weight of what these laws mean for people's everyday lives," said Chase Strangio, co-director of the ACLU's LGBTQ & HIV Project. "But I also know that every out trans person has embraced the unknown in the name of living free from shame or the limits of other people's expectations."

"My heart aches for the parents who spent years watching their children in distress and eventually found relief in the medical care that Tennessee now overrides their judgment to ban," said Strangio. "Whatever happens today, tomorrow, and in the months and years to come, I trust that we will come together to fight for the realized promise of our Constitution's guarantee of equal protection for all."

A ruling in the case is expected in June.

The scene at the end of the 19th century in what was known as Indian Territory — at one point encompassing most of the present-day United States west of the Mississippi River — would seem familiar to anyone following the news about the crisis on the U.S.-Mexico border.

Illegal immigrants streamed in, and some leaders had seen enough.

Nationalists among the Chickasaw Nation called for a mass deportation of white U.S. citizens. One Chickasaw leader, Judge Overton Love, wrote that undocumented whites should be “placed under arrest immediately and hustled out of the country with strict orders not to return.”

Muskogee leaders reported intruders to the federal government. U.S. marshals escorted white migrants to Arkansas and hit them with a US$1,000 fine. But they returned, again and again.

Delegates from 34 Indigenous tribes at the Creek Council House in Indian Territory, now called Oklahoma, in 1880. (National Archives)

Illegal invasion

Among those intruders was my great-great-grandfather, Bill Hogan. Bill was an illiterate white sharecropper in Yell County, Ark. He migrated with his family to the Muskogee Nation sometime around 1900, probably following a new railroad line.

Predatory landowners in the South made life difficult for poor white people like Bill, and nearly impossible for Black people. But freed slaves founded prosperous all-Black towns like Boley, just down the road from Bill’s homestead near Eufaula.

The illegal invasion of sovereign nations by white American citizens occurred all over the West, from Texas to South Dakota. Mexican authorities even worried about a flood of U.S. citizens re-introducing slavery into the republic, and banned U.S. immigration in 1830.

This did nothing to stop the flood of Americans from claiming land. A treaty prohibiting U.S. citizens from settling in the Great Sioux Reservation was blatantly violated by hundreds of gold prospectors in the 1870s.

When Oklahoma became a state in 1907, the U.S. effectively closed a chapter on 100 years of invasions and illegal land seizures in the western United States. A century later, conservative leaders have been claiming the U.S. is now the nation under threat of invasion, conveniently ignoring this long and complicated history.

White supremacy doctrine

It is common to hear that the U.S. immigration system is broken, but it was never fixed. Migration to and from sovereign Indigenous nations, Mexico and even Canada has always been subject to waves of xenophobia and fear. A political wind of change can turn intruders into pioneers, as happened on a massive scale among the Five Tribes in Indian Territory.

Bill Hogan may have been in the Muskogee Nation illegally, but he was accepted by his Muskogee neighbours by 1901. The Indigenous-published Indian Journal reported on his travels around Indian Territory in local news, and his son, Jordan, started to achieve some prosperity. The Hogans intermarried and my grandmother lived with a Choctaw man. She is buried next to a Muskogee family in the Checotah cemetery.

Editors and politicians back in the States noticed this unique mixture of native governance, poor white subsistence farming and Black town-building. They were not impressed. It was anathema to white “civilization.” The tri-racial experiment of Indian Territory was crushed by a doctrine of white supremacy established in new state laws.

Unlike today’s unauthorized immigrants, white intruders had political power and influence to change the law. The Indian Appropriations Act of 1902 made it illegal “to remove or deport any person from the Indian Territory who is in lawful possession of any lots or parcels of land in any town or city…which has been designated as a townsite.”

Just like that, ownership of land now protected white intruders like my ancestor if they owned land. Imagine the shoe on the other foot today: U.S. Congress passes a law protecting unauthorized immigrants from deportation because they own some real estate in an Oklahoma suburb.

A lineup of wagons and mules in the 1930s hitched to posts in Eufaula, Okla., close to where Bill Hogan had his homestead. (Library of Congress/Russell Lee)

There is a crucial difference between Bill Hogan crossing into Indian Territory and the current wave of migrants arriving in the United States. These new “intruders” do not want land.

The few stories of Latin American migrants seeking to claim land through squatters’ rights have little legal credibility. Unlike the settlers that pushed the Cherokees, Chickasaws and others off their allotted lands in Oklahoma, the new migrants are not really settlers at all. They are labourers.

The story of Leo Bennett

The U.S. Marshall tasked with enforcing migration laws in Indian Territory, Leo Bennett, found himself in the crosshairs of some who wanted mass deportation and others who wanted the termination of Indigenous governance.

WASHINGTON — U.S. Rep. Henry Cuellar is claiming some credit for Texas’ controversial buoys to prevent migrants from crossing the Rio Grande, saying he pitched the idea to Border Patrol years ago.

The conservative Democrat said in a recent interview with Newsweek that he made the pitch to Border Patrol to prevent migrants from claiming asylum by setting foot on U.S. territory.

“I said, if you put a wall in Texas in the river, you're about a quarter mile away. So when somebody crosses and touches the riverbanks, they can claim asylum,” Cuellar told the news magazine.

In a brief interview with The Texas Tribune, Cuellar added that the idea didn’t go anywhere at the time because the International Boundary and Water Commission didn’t give the necessary permits. But he was enthusiastic about an alternative to a land-based border wall in his district.

Gov. Greg Abbott deployed buoys and razor wire on the border last year to deter migrants from crossing the Rio Grande. Dozens of people have died trying to cross the river in recent years. Then-Mexican President Andrés Manuel López Obrador criticized the tactics last year after a body was reported on one of the buoys.

Texas Democrats in Congress, including Cuellar, sent a letter to President Joe Biden urging his administration to investigate Abbott’s actions under Operation Lone Star, including the use of razor wire and buoys on the Rio Grande. The letter asserts the buoys and razor wire are “potentially illegal and may violate multiple bilateral treaties” designating water rights between the United States and Mexico. Every Democrat in Texas’ congressional delegation at the time signed onto the letter.

Cuellar, who has represented the 28th Congressional District since 2005, expressed similar concerns during a press conference in 2023 about Operation Lone Star, where he said the buoys could change the border if there is flooding and that Border Patrol agents have expressed concerns that the razor wire can impede them.

“We need to have border security, but at the same time, we have to respect the rights and the dignity of the migrants who are trying to come into the U.S.,” Cuellar said at the news conference. “One of the things that we’ve asked the state and that I’ve asked the federal government is, are we coordinating with the state, and it looks like the state is going solo on this.”

Speaking with The Texas Tribune, Cuellar said he was not opposed to the use of buoys, but he signed onto the 2023 letter in opposition to the state’s unilateral use of the barriers without working with the federal government. He said he was optimistic the state will work with the incoming administration of President-elect Donald Trump on hardening the border.

Cuellar also said he didn’t want to take credit away from Abbott for deploying the buoys.

“I’m not taking anything from Governor Abbott,” Cuellar said. “I congratulate him.”

Cuellar is among the most conservative Democrats in Congress and has occasionally crossed over to support Republican efforts on border security. He helped launch a Democratic task force on border security earlier this year.

He has recently shown openness to working with Trump’s administration, saying he saw opportunities for “common ground” with Tom Homan, Trump’s border czar. Homan served as director of Immigration and Customs Enforcement during Trump’s first term. The pair plans to meet sometime next week. Cuellar said he could see an agreement with the Trump administration on working with Mexico to keep migrants from reaching the U.S. border.

Cuellar remains politically battered, reeling from a federal indictment charging him with bribery, money laundering and working on behalf of the Azerbaijani government and a Mexican bank. He has denied the allegations and won reelection in November by 5.6 percentage points. He won reelection in 2022 by more than 10 points.

Republicans declined to heavily fund a challenge against Cuellar this year despite the indictment, which came out after the first round of the district’s Republican primary. But South Texas remains a major target for the party, and national Republicans have telegraphed they are keeping their sights on the district in the future.

Cuellar’s trial is set to begin next spring in Houston, in which more details of his alleged criminal activity are expected to be aired out. He is charged with accepting nearly $600,000 in bribes to advance the interests of Azerbaijan’s oil and gas sector and the business interests of Banco Azteca. He is accused of setting up money-laundering schemes to conceal the bribes with the help of his wife, Imelda. Cuellar said his behavior was in line with other members of Congress.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/12/04/henry-cuellar-texas-rio-grande-border-buoys-immigration/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

Eight years ago, when conservative state lawmakers tried to restrict what bathrooms trans people could use, moderate Republicans quietly killed the bill in a special session.

Less than a decade later, that seems like a distant memory. The far-right now has the Legislature firmly in its grip and, emboldened by the recent election, they’re gearing up to make growing trans animus the social issue of the session.

[After Texas banned puberty blockers and hormones for trans kids, adults lost care, too]

Nationwide, Republicans have successfully pushed these laws as a way to protect children, by prohibiting them from medically transitioning before they turn 18 and stopping trans students from playing on sports teams that don’t align with their biological sex.

Texas has so far marched in lockstep with its conservative cousins in passing laws aimed at children. But some lawmakers want to further restrict the lives of trans adults as well, filing bills about bathroom use, gender identity markers on official documents and funding for gender reassignment surgery.

“The American people and especially Texans that I represent, they’ve had enough of it,” Rep. Brian Harrison, an arch-conservative from Midlothian, told The Texas Tribune. “They’re forcing you to celebrate something that’s at odds with objective reality, and in many instances, forcing tax dollars to fund it.”

The limit on how far Texas will go on this issue lies in the hands of conservative lawmakers, as the state is unlikely to face federal pushback as they did during the Biden administration. Incoming President Donald Trump has vowed to get Congress to pass a bill declaring there are only two genders, and to keep “transgender insanity the hell out of our schools.”

“I don’t see any reason the state would moderate its position at this point,” said Andrew Proctor, a political science professor at the University of Chicago who studies LGBTQ political issues. “If anything, the things they want to pursue will be easier now.”

A message is born

In 2016, the U.S. Supreme Court legalized same-sex marriage nationwide, and conservatives began casting around for a new social issue to back. They landed on the small but growing trans population, and the incremental discrimination protections they’d gained during the Obama administration.

The next year, in 2017, there were a few dozen anti-trans bills filed in state houses across the country. Many, like Texas' bathroom bill, failed. At that time, 57% of Republicans said society had gone “too far” in accepting trans people.

Then, they honed in on children. Terry Schilling, president of the American Principles Project, a right-wing political advocacy group, helped shape the messaging around this issue. He said conservatives are willing to be “polite” to people who identify as trans — to a point.

“Once you go into my daughter's athletics or in her locker room or showers, once you start giving kids gender transitions that mutilate them and sterilize them, then we're in a whole different world,” he told The Texas Tribune after the election.

All major medical associations acknowledge that gender dysphoria, the distress someone can feel when their physical presentation doesn’t match the gender they identify as, is a real medical condition best treated with gender-affirming care. That can range from social transition, in which someone goes by different pronouns or dresses differently, to medical treatments, including puberty blockers, hormone therapy and surgeries. Minors rarely undergo surgery to transition, and all decisions are made in consultation with their parents and medical professionals.

Nonetheless, the conservative messaging resonated. Last year, almost 80% of Republicans said society had gone too far in accepting trans people, and this year, even with Texas laying dormant, there were 669 anti-trans bills filed in state legislatures across the country.

But despite this sharp increase in anti-trans sentiment, it’s not entirely clear what Americans want their government to do about it. More than half of Republicans do not want to ban gender-affirming care for minors, and almost as many want to protect trans people from discrimination in jobs, housing and public spaces.

Texas’ ban on gender-affirming care for minors was widely condemned by medical associations, doctors, advocates and trans people, who called the laws “dangerous,” “cruel and grotesque,” and “devastating.” Every Republican, and a handful of Democrats, voted for the ban.

Now, trans people, advocates and health care providers are bracing for what comes next.

“It's almost necessary, based on their framework and the way they frame these cases, that they would argue that access to care for adults would be a violation in the same way as for children,” said Elana Redfield, the federal policy director at the Williams Institute, a research center on gender identity law and public policy at the University of California Los Angeles. “Texas has already made it pretty clear they intend to do that.”

The next frontier

In 2024, an off year for the Texas Legislature, other Republican states charged ahead, setting the agenda for what lawmakers might do when they reconvene in January. No state has fully banned adults from accessing gender-affirming care, but some, such as Florida, have significantly restricted the provision of these treatments, discouraging doctors and patients alike.

Texas lawmakers are already filing bills to tee up these issues. Sen. Bob Hall, a Republican from Edgewood, and Rep. Ellen Troxclair, an Austin Republican, have filed bills requiring government records to reflect that there are only two genders, tightly defining male and female based on reproductive organs. Other bills would prevent trans people from amending their birth certificates to reflect their gender identity.

These laws have the effect of “erasing transgender people altogether,” Redfield said. Some of this is already under way: Earlier this year, the Texas Department of Public Safety, under scrutiny from Attorney General Ken Paxton, began refusing to change the sex listed on someone’s driver’s license, even with a court order. The agency also began compiling names of people seeking the change.

Lawmakers are also hoping to resurrect the bathroom issue, as well as requiring trans people to be placed in jails or prisons based on the sex they were assigned at birth.

Harrison, the Midlothian Republican, has filed a bill that would forbid state funding to be used for transition-related care.

This idea gained traction during the presidential election, when Trump accused Vice President Kamala Harris of supporting taxpayer-funded gender reassignment surgery. In a small number of cases, federal inmates have won court battles that required the federal government to pay for their transition-related medical care.

Harrison said his focus is purely about how tax dollars are spent, and it’s the media who portrays these as social issues.

“We are making the lives harder for Texans of all stripes when we make them poorer, and we certainly shouldn’t make them poorer in the pursuit of leftist ideology,” he said.

Federal shifts

On Wednesday, the U.S. Supreme Court will hear arguments in a lawsuit challenging Tennessee’s gender-affirming care ban for minors, a case that could determine how far states like Texas can go with these restrictions. The U.S. Department of Justice sued in 2023, saying the law unconstitutionally discriminates on the basis of gender.

The suit was one of several attempts by the Biden administration to insulate trans people from the impacts of conservative state laws.

“The Biden administration has been the most explicitly protective administration for transgender people,” Redfield said. “We can anticipate the incoming president will claw back as much of that as possible.”

In his first term, Trump ejected trans people from the military and reversed many Obama-era discrimination protections. In his recent presidential campaign, he ran heavily on this record, culminating in an ad that said “Kamala is for they/them. President Trump is for you.”

Project 2025, the policy blueprint created by the conservative Heritage Foundation that many hope Trump will pull from, calls for removing “sexual orientation” and “gender identity” from all federal rules, regulations and legislation, and restricting gender-affirming care across age groups.

Trans people and advocates are preparing for what Congress and the White House might do, as well as where state legislatures might go without federal oversight to rein them in. Many groups are recommending trans people proactively change their government documents to align with their gender identity, where that’s still allowed; stock up on transition-related medications; and prepare to move states or leave the country, if needed.

Whatever Trump does on this issue, Texas is expected to go even further.

“Texas better do at least as good a job as Washington, D.C. is going to do on that front,” Harrison said. “And that’s what I’m committed to ensuring happens.”

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/12/04/texas-transgender-restrictions-legislative-session/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

Emphasizing that the Equal Rights Amendment is the only proposed constitutional amendment that has yet to be certified, 46 U.S. senators have joined the growing national call for President Joe Biden to ensure the proposed statute is part of the Constitution when he leaves office in January.

Reporting on the letter on Tuesday, the Virginia-based publication Style Weekly noted that the state's two Democratic senators—Sens. Mark Warner and Tim Kaine—joined almost the entire Democratic caucus in sending the letter to Biden on November 22. Independent Sens. Angus King of Maine and Bernie Sanders of Vermont signed the letter, but Sen. Joe Manchin (I-W.Va.), who also caucuses with the Democrats, did not.

The ERA was passed by Congress in 1972, and was immediately ratified by 35 states. It took nearly five decades for the amendment to be ratified by three-fourths of U.S. state legislatures, with Virginia becoming the 38th state to ratify it in 2020.

Despite the amendment meeting the ratification requirements, Biden has yet to direct the national archivist, Colleen Shogan, to certify the ERA and publish it in the Federal Register, which would formally cement it as part of the U.S. Constitution.

Once published, the amendment would guarantee legal equality between men and women, and reproductive rights advocates have said it could be invoked by judges to overturn anti-abortion rights laws that have been passed by Republican-controlled state legislatures across the country—an urgent issue as President-elect Donald Trump's second term in office with a GOP-controlled Congress draws near.

"As you are keenly aware," wrote the senators, "after nearly 50 years under the protections of Roe, more than half of all Americans have seen their rights come under attack, with access to abortion care and lifesaving healthcare varying from state to state. A federal solution is needed, and the ERA is the strongest tool to ensure equality and protect these rights for everyone. It would establish the premise that sex-based distinctions in access to reproductive care are unconstitutional, and therefore that abortion bans—which single out women for unfair denial of medical treatment based on sex—violate a constitutional right to sex equality."

The senators noted that state-level equal rights amendments have already been used in Connecticut, New Mexico, Pennsylvania, Utah, and Nevada to protect against "legislative infringements on women's reproductive freedom."

The letter was reported ahead of a virtual town hall scheduled for Tuesday at 7:00 pm ET, when Sen. Kirsten Gillibrand (D-N.Y.) is scheduled to speak about the ERA.

The town hall was organized by the Biden Publish the ERA Alliance, which consists of 20 non-partisan advocacy groups including Doctors for America, Free Speech for People, and the League of Women Voters.

Organizers are also planning rallies in Washington, D.C. on Wednesday and next week.

Kati Hornung, co-founder of Vote Equality U.S. and a leader in the grassroots effort that pushed Virginia to ratify the ERA, told Style Weekly that Biden "campaigned on fixing our constitutional gender equality gap and his campaign even requested to speak at a VAratifyERA event in 2019."

"He is running out of time to tell the national archivist, Colleen Shogan, to do her job," she said. "One hundred seventy million women and girls have been waiting 101 years for this amendment to be added and with the increased threats to our LGBTQIA+ family and friends, there is no excuse for leaving us all unprotected."

Despite committing to tackling mass incarceration during his presidential campaign, President Joe Biden has rarely used the presidential pardon to commute sentences during his time in office. As his term draws to a close and amid outrage over the pardon of his son Hunter, advocates are pressuring Biden — who has pardoned thousands who had been convicted of federal drug charges but were not incarcerated at the time of their pardons — to grant clemency to thousands more who are still in prison over cannabis offenses. The president has a chance to atone for his past support of “tough on crime” measures, says the Last Prisoner Project’s Jason Ortiz. He says Biden has an opportunity of “correcting the injustices that were done over the past 20 or 30 years” and should “extend the same grace and compassion” he showed his son Hunter “to all the folks that he helped put in prison to begin with.”

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, “War, Peace and the Presidency.” I’m Amy Goodman, with Juan González.

President Biden is continuing to face criticism over his decision to issue a sweeping pardon to his son Hunter Biden. But the president’s decision has also brought renewed attention to the power of the presidential pardon. Biden is now facing renewed pressure to commute the sentences of death row prisoners and to pardon or grant clemency to political prisoners like Indigenous leader Leonard Peltier, imprisoned in Florida, and the whistleblowers Edward Snowden and Julian Assange. The group Last Prisoner Project is calling on Biden to use his clemency power to free those still incarcerated in federal prison for cannabis crimes.

We’re joined now by Jason Ortiz, director of Strategic Initiatives at the Last Prisoner Project.

This is very interesting, Jason. I think they say that Hunter Biden has been clean for something like just over five years. His father has openly talked about his son, formerly an addict. And as he faces bipartisan criticism, talk about what you think this is an opening for.

JASON ORTIZ: Sure. So, this is definitely an opening for folks to talk about exactly how expansive we can use the pardon power of the president to make sure that we’re correcting the injustices that were done over the past 20 or 30 years when it comes to cannabis crimes. President Biden himself was actually one of the architects of the 1994 crime bill that created a lot of the outrageous sentences that we’re now dealing with today.

And so, we’re seeing that there are over 3,000 federal cannabis prisoners currently incarcerated on cannabis charges, and these are all folks that also have families and have parents and have loved ones. And we have examples, like folks like Jonathan Wall, who is somebody that was a Maryland resident. He was sentenced to 10 years in federal prison for his first offense. And so, while I can understand why the president wants to have compassion for his own son, where we’re really getting frustrated is that he’s refusing to extend that compassion to all the parents that are currently watching their kids waste away in prison. Mitzi Wall, who works with the organization Freedom Grow, is the mother of Jonathan Wall. She was joining me this past week when we had the congressional press conference, when we were joined by folks like James Clyburn, Congressman James Clyburn, asking for freedom and clemency for folks like Jonathan Wall. And so, that’s one example of 3,000 folks that are currently in prison.

Some of the charges are far more egregious. Folks like Edwin Rubis was sentenced to 40 years in federal prison in the '90s. And so, he's someone that hasn’t had a Christmas or holidays with his family. He has a son that’s 27 years old. He has currently served 27 years of that federal sentence. He hasn’t had a single Christmas with his son because of charges that were orchestrated and architected by President Biden, then as senator, in the crime bill. We have folks that are serving life sentences. Ismael Lira, for a trafficking charge, is currently sentenced on a life sentence for the same activity that is now legal across the country in 25 —

AMY GOODMAN: Which is what?

JASON ORTIZ: — different states, including — trafficking. And so, that would be the distribution of cannabis. And so, there is a specific differentiation between what President Biden’s previous pardons were intended to do, which was only covering things like simple possession, where right now we have folks that are serving decades for trafficking, which is exactly what the hundreds of legal cannabis businesses across the country are currently doing on a regular basis, including right in Washington, D.C. And so, we’re now seeing people sitting in prison for decades for the same activity that is currently generating tax revenue for cities and states across the country. We’re paying for schools and building bridges with cannabis activity dollars, but still letting folks waste away in prison. And so, while I can definitely understand why a father would want to have compassion for his son and avoid prison time for his son, we’re really asking him to extend that same compassion to all the folks that he helped put in prison to begin with.

JUAN GONZÁLEZ: [Jason], you mentioned the previous pardons for simple cannabis possession, but that hasn’t led to the release of many of those incarcerated individuals. Can you talk about that?

JASON ORTIZ: Yeah, absolutely. So, those pardons were for simple possession, for folks that were currently charged on a federal possession charge. And, now, it is very rare for someone to actually serve prison time for a simple possession charge at the federal level. That generally happens to folks — somebody maybe got caught; they were smoking at a national park or some other sort of federal property where they were unaware of it. But there are nobody in prison for simple possession in the federal prison system whatsoever. So, despite his pardoning of 6,000 charges, zero people were released.

However, the charges that we’re looking to actually have folks released for, things like cultivation of cannabis, sales of cannabis, those are the charges that folks are currently in prison for. And we want him to expand his use of the pardon to cover all cannabis crimes that are now legal in the majority of the country.

JUAN GONZÁLEZ: Yeah, and, Jason, apologies, but, Jason, during your press conference last week, you spoke of, quote, “the heartbreaking number of Latino fathers incarcerated for life or near-life sentences.” How do these cases reflect systemic inequalities in federal sentencing?

JASON ORTIZ: So, we’ve seen for the past 50 years or so that the war on drugs has been racially motivated, specifically targeting young Black and Brown men, and many of those are Latinos, here in the city of New York. There was millions of arrests across the country. We’ve seen countless young fathers that have been ripped from their families, simply because they were trying to make money to help feed their families.

And so, I was somebody who was arrested in high school at the age of 16. I was lucky enough not to get incarcerated, but only because my parents were able to help me through this ridiculous legal process of keeping a 16-year-old out of prison.

And so, we’re seeing across the country that while these laws are changing, the retroactive relief and the restorative justice for the folks that were impacted has not followed suit with all of the cannabis profits that we’re seeing developed across the country. And we know without a doubt that the war on drugs was and is still racially motivated, specifically targeting Blacks and Latinos. And so, we’ve yet to actually wrestle with that real racist history of the war on drugs. We’re simply trying to just move on without addressing the past.

And I think the president has an incredible opportunity now to really address the issues that have been developed over the last few years by taking real expansive action, using his clemency power to commute the sentences of the folks that are currently in prison. And roughly half of the folks that are on our list of constituents are Latino. And you can see very clearly just by looking down the list of names who is in there and who is getting out in the future. And Latinos are definitely overrepresented in the prison population generally, but especially in the federal system for cannabis crimes.

AMY GOODMAN: So, if you look at the clemency statistics by president, Biden is at almost the lowest, outside of George H.W. Bush. Biden, Trump, Obama, W., Clinton, H.W. and Reagan — he’s number two, among the lowest. Are you speaking directly, are your groups speaking directly with the Biden clemency office? How far are these demands going? You’re talking about thousands of people.

JASON ORTIZ: Yeah. So, we have met with White House officials multiple times, and we’ve explained exactly the folks that we believe are the top candidates for clemency. And while they have been receptive, they have not told us that they’re going to take any particular action to help these folks out at all.

And so, what we are really doing is hoping that they will take action sooner rather than later. It is true that most of the time most presidents use their clemency powers at the very end of their presidency. However, President Biden has clearly shown that he’s not going to wait for everyone to wait until the end of his presidency. He was willing to do it a little bit earlier for his son. And so, we’re asking him to extend the same grace and compassion to all the folks that are currently incarcerated and release them immediately, let them join their families for the holidays, let them see their families grow up, and bring joy and happiness back into their lives.

These are folks that have served a tremendous amount of time already. This is not folks that we’re saying did not commit the crime and should be, you know, released without any sort of punishment. Folks like Edwin Rubis have already served 27 years of their life in federal prison for a cannabis charge.

And so, while he could wait, we are asking him not to wait, to do this immediately, to show the people that his presidency is going to be one where he will be remembered as addressing the issues that he created and coming to this from a place of compassion, and not continuing the process and continuing the damage done by punitive drug policies.

AMY GOODMAN: Well, Jason Ortiz, we thank you so much for being with us, director of strategic initiatives at the Last Prisoner Project.

Nearly two years after it was first proposed by Republican lawmakers, an Idaho law that, as one rights advocate said, essentially "traps" people in the state to stop them from getting abortion care, was permitted to go into effect on Monday after a federal appeals court ruling.

The Ninth U.S. Circuit Court of Appeals ruled that Idaho can prohibit people from "harboring or transporting" a minor who needs to leave the state to obtain an abortion, which is still legal in the surrounding states of Oregon, Washington, and Montana.

The law, originally proposed as House Bill 242, makes the so-called crime of "abortion trafficking" punishable by two to five years in prison, even if the pregnant person obtains an abortion in a state where the procedure is legal.

The law was blocked in its entirety in late 2023 by a judge who found it violated First Amendment rights, because it also included a ban on "recruiting" teenagers to obtain abortion care across state lines.

The appeals court on Monday found that the "recruitment" portion of the law did violate the constitutional right to free speech because it could be applied to anything "from encouragement, counseling and emotional support; to education about available medical services and reproductive healthcare; to public advocacy promoting abortion care and abortion access."

"Encouragement, counseling and emotional support are plainly protected speech under Supreme Court precedent," wrote Judge M. Margaret McKeown, an appointee of former Democratic President Bill Clinton, in the majority opinion.

"Republicans want to scare anyone who might help teens access abortion—whether it's a beloved grandmother or a local abortion fund."

Wendy Heipt, an attorney representing the Northwest Abortion Access Fund and the Indigenous Idaho Alliance as well as a lawyer and advocate who sued the state over the law, said the portion of the ruling regarding "recruitment" was a "significant victory for the plaintiffs, as it frees Idahoans to talk with pregnant minors about abortion healthcare."

But Jessica Valenti, a writer and advocate who writes the Substack newsletter Abortion, Every Day, said efforts to establish traveling for abortion care as a crime should be "front page news every single day."

"If legislators were trying to trap men in states where they couldn't get healthcare, we would never hear the end of it," wrote Valenti.

Republicans in Idaho have pushed the law as one that would "stop adults from taking minors across state lines for abortions without parental permission," Valenti added. "In truth, the law criminalizes helping a teenager obtain an abortion in any capacity—anywhere."

She continued that the ban's "sweeping language... could send someone to prison as a 'trafficker' for lending a teen gas money."

"That's the point, of course: Republicans want to scare anyone who might help teens access abortion—whether it's a beloved grandmother or a local abortion fund," wrote Valenti. "They're targeting the helpers."

Tennessee Republicans have also passed an "abortion trafficking" law, but a court blocked it from being enforced in September, with U.S. District Judge Aleta Trauger writing that the state had "chosen to outlaw certain communications in furtherance of abortions that are, in fact, entirely legal."

"It is, therefore, a basic constitutional fact—which Tennessee has no choice but to accept—that as long as there are states in which abortion is permissible, then abortion will be potentially available to Tennesseans," added Trauger.

Republicans in Mississippi, Alabama, and Oklahoma have introduced similar legislation, while Alabama Attorney General Steve Marshall has suggested states can restrict pregnant residents' travel.

Valenti wrote that Monday's ruling "is not just about Idaho" and that laws barring travel for abortion care will not "stop with teenagers."

"Young people are the canaries in the coal mine," she wrote. "What happens to them today comes for us all tomorrow."

The FBI and police in several states are investigating a wave of hateful texts and emails apparently targeting minorities across the United States following the presidential election.

As an estimated 11.7 million undocumented immigrants brace for U.S. President-elect Donald Trump's return to office, Amnesty International on Monday called for immediate action from the outgoing Biden administration to "protect people seeking safety."

While Amnesty and many other migrant rights advocates have forcefully criticized President Joe Biden's immigration policy, Trump's dehumanizing attacks, promises of mass deportations, and history of forcibly separating families at the southern border have heightened fears of what his second term—with a Republican Congress—will mean for immigrants with and without papers.

"Time and time again, President Biden said he was committed to a humane immigration system, and this is [his] final opportunity to help those coming to the United States in search of safety and a new beginning, like his ancestors did many years ago," Amnesty International USA executive director Paul O'Brien said of a president who often references his family's Irish roots.

"President Biden must use the power of the pen to protect those seeking sanctuary from the coming deportation machine that will crush the human rights of our immigrant neighbors and those who have dreams of finding refuge here," O'Brien argued.

"President-elect Trump already has plans in place to start a massive deportation effort and completely gut the very foundation of asylum on day one of his second term."

Specifically, Amnesty is urging Biden to issue new Temporary Protected Status (TPS) and deferred enforced departure designations, extend authorization dates for individuals who have already been paroled into the United States, and expand legal pathways and protections for farmworkers and undocumented immigrants who were brought to the United States as children.

The group also wants the president to prioritize additional resources for U.S. Citizenship and Immigration Services to address the long backlogs and issue protections for those who have applications pending for advanced parole, asylum, Deferred Action for Childhood Arrivals, TPS, and work permits.

The group is further calling on him to "stop detention expansion efforts, shut down the most problematic detention centers that have long perpetuated violence and harm toward people seeking safety, and release vulnerable individuals and those who are eligible for TPS and parole."

Amnesty's demands of Biden come just seven weeks away from Trump's inauguration—and the Republican has already made clear that he's prepared to make immigration policy a priority with some of his leadership picks: South Dakota Gov. Kristi Noem for homeland security secretary; family separation architect Stephen Miller as deputy chief of staff for policy; and former U.S. Immigration and Customs Enforcement acting Director Tom Homan as "border czar."

As USA Todayreported Sunday, Miller and Homan have promoted different approaches to Trump's pledged deportations. Under an ICE-focused plan that Homan laid out shortly before the election, it would be "business as usual, but times two," Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, told the newspaper.

"Stephen Miller is absolutely apocalyptic about what mass deportations would look like on his end," Reichlin-Melnick continued. "He talks about detention camps in Texas with very clear, specific operational details."

According to the newspaper:

By all accounts, it appears Trump is siding with Miller for now.Trump recently confirmed reports that he plans to declare a national emergency and use the U.S. military to conduct mass deportations.
But no matter how Trump carries out mass deportations, Reichlin-Melnick said the damage to the United States will be significant.
"Even if it doesn't end up being 11 million people, the fear has real effects on the people who become the target of this very hungry deportation machine."

Given the looming threat, Amy Fischer, director of refugee and migrant rights at Amnesty International USA, stressed the urgency of Biden acting now.

"President-elect Trump already has plans in place to start a massive deportation effort and completely gut the very foundation of asylum on day one of his second term. There simply is no time to lose," Fischer said. "We cannot allow the continued disintegration of the country's immigration system and the targeted rhetoric and violence toward people seeking safety at the border and new arrivals thriving in cities and towns across the United States."

"Some of these actions that President Biden must take will help slow down any mass deportation efforts and will send a strong message to people seeking safety that they are welcome in the United States," Fischer added. "This is his last chance."

In the days following Donald Trump's presidential victory, an alarming surge in misogynistic rhetoric and threats against women has emerged online and in real life, according to a report from the Associated Press. Dubbed the 'emboldened manosphere', the trend has left many women feeling unsafe and compelled to take protective measures.

Sadie Perez, a 19-year-old political science student in Wisconsin profiled in AP's report, now carries pepper spray with her on campus. Her mother ordered self-defense kits for her and her sister.

This reaction stems from the rise of right-wing 'manosphere' influencers who have seized on Trump's win to amplify misogynistic content online.

A troubling trend is the appropriation of the pro-choice slogan "My body, my choice" into "Your body, my choice," a phrase that has spread rapidly online. Attributed to a post by far-right figure Nick Fuentes, it garnered 35 million views on its first day on X. The slogan has since appeared in middle schools, college campuses, and even on t-shirts — which were later removed by Amazon.

Online declarations calling to "Repeal the 19th" Amendment (which gave women the right to vote) have gained millions of views.

While Trump himself isn't directly amplifying this rhetoric, his campaign's focus on masculinity and repeated attacks on Kamala Harris's gender and race have contributed to the current climate. Dana Brown from the Pennsylvania Center for Women and Politics suggests that for some men, Trump's victory represents a chance to reclaim traditional gender roles they feel they're losing.

Despite the fear and disgust many women feel, some are fighting back. Perez and her peers are supporting each other, celebrating wins like female majorities in student government, and encouraging women to speak out against the misogynistic rhetoric. As Perez puts it, "I want to encourage my friends and the women in my life to use their voices to call out this rhetoric and to not let fear take over."

Ohio Attorney General Dave Yost will appeal a Hamilton County court’s decision to strike down the state’s six-week abortion ban with no exceptions for rape or incest that was put into effect for several months after Roe v. Wade was overturned in 2022.

Yost, along with Ohio Department of Health director Bruce Vanderhoff and the State Medical Board of Ohio’s Kim Rothermel and Bruce Saferin, were listed in the notice of appeal filed this week in the 1st District Court of Appeals. The 1st District is the appellate court that oversees Hamilton County.

Christian Jenkins’ decision in October which struck down a 2019 law that banned abortions after six weeks gestation, a time at which supporters of the law said fetal cardiac activity could be detected.

The law was blocked in court almost from the moment it was enacted, with abortion rights advocates suing to stop enforcement of the law.

When the U.S. Supreme Court overturned Roe v. Wade in the summer of 2022, Yost asked a federal court the same day for the law to be released from its injunction.

The law then went into effect for several months, but was then tied up in court again after abortion rights advocates like Preterm Cleveland and Planned Parenthood Southwest Ohio Region asked the Ohio Supreme Court, and then a Hamilton County court, to stop the law once again.

When 57% of Ohio voters approved a reproductive rights constitutional amendment in November 2023, attorneys for the abortions rights groups sought to get the law permanently overturned, with the rights enshrined in the new amendment.

During the case, after the amendment was passed by voters, Yost argued that the law shouldn’t be thrown out entirely. He argued that some provisions didn’t conflict with the amendment passed by voters and should be kept, such as mandatory waiting periods and multiple appointments required for abortion care.

This past October, Jenkins agreed with the groups, saying the new amendment “now unequivocally protects the right to abortion” and that the law should be permanently overturned “to give meaning to the voice of Ohio’s voters.”

“Unlike the Ohio Attorney General, this court will uphold the Ohio Constitution’s protection of abortion rights,” Jenkins wrote in his decision. “The will of the people of Ohio will be given effect.”

Jenkins used Yost’s own legal analysis of the amendment (written prior to its passage) against him in the ruling. Yost wrote in the analysis that the amendment “would give greater protection to abortion to be free from regulation than at any time in Ohio’s history.”

“Ohio would no longer have the ability to limit abortions at any time before a fetus is viable,” Yost wrote. “Passage of Issue 1 would invalidate the Heartbeat Act, which restricts abortions (with health and other exceptions) after a fetal heartbeat is detected, which is usually at about six weeks.”

Jessie Hill, cooperating attorney for the ACLU of Ohio, who represented abortion rights groups in the case, said they intend to “keep fighting to ensure that the amendment is enforced, and Ohioans’ rights are protected.”

“We are disappointed that the attorney general continues to spend taxpayer money on this lawsuit and disregard the very clear message that Ohioans sent when an overwhelming majority approved the Reproductive Freedom Amendment to our constitution,” Hill said in a statement Tuesday afternoon.

The Attorney General’s Office said seeking appellate review “is a necessary and appropriate step.”

“The state respects the will of the people regarding the six-week abortion ban, but the state is also obligated to protect provisions in (Senate Bill) 23, as passed by the General Assembly and signed by the governor, that the constitutional amendment does not address,” spokesperson Bethany McCorkle said in a statement. “It is up to the courts to determine how conflicts between those two documents are resolved.”

Ohio Capital Journal is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David Dewitt for questions: info@ohiocapitaljournal.com. Follow Ohio Capital Journal on Facebook and X.

The country's largest Muslim civil rights group on Thursday called for added protections for U.S. Reps. Rashida Tlaib and Ilhan Omar after Florida state Sen. Randy Fine issued an apparent threat against the two Muslim lawmakers.

Fine, who has the endorsement of President-elect Donald Trump in his candidacy for the U.S. House of Representatives, called himself the "Hebrew Hammer" in a post on X on Tuesday and suggested Reps. Tlaib (D-Mich.) and Omar (D-Minn.) should leave office for their own safety.

"Bombs away," he added.

The Council on American-Islamic Relations, which has spoken out previously about anti-Palestinian and anti-Muslim statements by Fine (R-19), called the lawmaker an "unhinged anti-Muslim bigot."

His apparent threat of violence "must be investigated by state and federal law enforcement authorities and condemned by both Democratic and Republican Party leadership," said Edward Ahmed Mitchell, national deputy executive director of CAIR. "President-elect Donald Trump, in particular, should denounce Mr. Fine's remarks and the Florida Republican Party should expel him."

"We also call on U.S. Capitol Police to step up protection for Representatives Omar and Tlaib to ensure their safety as they come under increasing threats from anti-Muslim and pro-genocide bigots like Randy Fine," said Mitchell.

Fine was held in contempt of court in Florida earlier this year for making obscene gestures and mouthing curse words at a hearing. He is running in a special election set for April 1, 2025, due to Trump's appointment of Rep. Michael Waltz (R-Fla.) to be national security adviser.

In 2021, the Florida chapter of CAIR filed an ethics complaint against Fine after he posted on social media calling Palestinian people "animals" and calling for their annihilation with the hashtag "#BlowThemUp."

Omar and Tlaib—the only Palestinian-American in Congress—have been vehement critics of the United States' support for Israel's assault on Gaza, and defenders of Palestinian rights.

Pro-LGBTQ+ voices panned an Ohio bill signed by Republican Gov. Mike DeWine Wednesday that will bar transgender students in public and private Ohio schools from using "multi-occupancy facility"—bathrooms, as well as locker rooms, changing room, or shower rooms—that match their gender identity.

"We made it clear to Gov. DeWine and Ohio legislators that S.B. 104 does nothing to make trans students safer in schools, and in fact makes life more dangerous for trans kids in Ohio," said Equality Ohio executive director Dwayne Steward in a statement.

"We are deeply disappointed that Gov.DeWine has allowed this dangerous bill to become law that puts vulnerable trans youth at risk for abuse and harassment. Equality Ohio will continue to stand in solidarity with our transgender communities and their families, and we will always fight for fairness in Ohio," Steward added.

The ACLU of Ohio said on social media that "transgender people are part of the fabric of Ohio; our families, our workplaces, and our neighborhoods. We remain steadfast in our commitment to the LGBTQ+ community and are closely considering next steps."

In a statement published after the legislation passed in the Ohio Senate, Jocelyn Rosnick, policy director for the ACLU of Ohio, said that "this bill ignores the material reality that transgender people endure higher rates of sexual violence and assaults, particularly while using public restrooms, than people who are not transgender."

According to Mother Jones, Ohio Senate Minority Leader Nickie Antonio (D-23), the first openly LGBTQ+ person elected to the Ohio Legislature, said during a floor debate on the bill: "It's really not about the bathrooms. It's about demonizing and frightening people."

The law applies to K-12 and higher education institutions and schools are not allowed to offer gender-neutral multi-stall facilities; however, the bill doesn't prevent schools from establishing "a policy providing accommodation such as single-occupancy facilities or controlled use of faculty facilities at the request of a student due to special circumstances."

But Mallory Golski, civic engagement and advocacy manager at the queer youth support organization Kaleidoscope Youth Center, expressed skepticism that providing access through single-occupancy facilities would really help gender expansive students in an interview with Mother Jones. "I just don't foresee a scenario in which schools that are already historically underfunded are going to be able to drop everything and build new bathrooms," she said. "It's just not possible."

The signing of the anti-trans legislation Wednesday runs counter to a move by DeWine last year. The governor chose to veto a bill that blocked gender-affirming care for trans youth and prevented transgender athletes from playing women's sports (lawmakers later overrode his veto).

Ohio is one of 14 states that have implemented some sort of restriction on transgender people's use of bathroom or facilities consistent with their gender identity, according to the think tank the Movement Advancement Project. Some of those states also have restrictions in place on some government buildings.

The recently signed bill in Ohio comes days after Republican Congresswoman Nancy Mace of South Carolina introduced a resolution seeking to prevent trans women employees and members of the House of Representatives from using the women's bathrooms at the U.S. Capitol. Though Mace did not initially name any member of Congress specifically, she later admitted the measure was "absolutely" aimed at incoming Democratic Rep. Sarah McBride of Delaware, the first openly trans person elected to Congress.

Next week, our guest Chase Strangio will make history as the first openly transgender lawyer to argue before the Supreme Court. Strangio will argue on behalf of the American Civil Liberties Union’s LGBTQ & HIV Project that Tennessee’s state ban on gender-affirming hormone therapies for transgender children is a form of sex discrimination. “Our hope is that the cultural anxiety about trans people … is not going to sway the justices from applying straightforward constitutional principles,” says Strangio about the case. We also discuss recent cultural backlash against trans rights as part of an “approach to gender that is regressive and dangerous.” The Democratic Party has been unwilling to provide a robust defense to conservative attacks on trans identity, says Strangio, ceding ground to the further loss of the community’s civil rights and protections. Yet even as trans people are “demonized” and blamed for structural problems in the U.S., he adds, “We have always resisted. We have always taken care of each other. No matter what happens, that is what we’ll do.”democracynow.org

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.

When incoming Republican President Donald Trump returns to office, he’s vowed to target the LGBTQIA community. Our next guest will be a key figure in challenging this.

Next week, Chase Strangio will make history as the first openly transgender lawyer to make oral arguments before the Supreme Court as the justices consider Tennessee’s ban on gender-affirming hormone therapies for transgender minors. The case argues the ban is a form of sex discrimination.

Last week, the Republican House Speaker Mike Johnson announced a policy banning transgender people from using some Capitol restrooms that correspond to their gender. This came after Republican Congressmember Nancy Mace introduced a resolution to ban transgender women from using women’s restrooms at the Capitol, then posted about it more than 300 times, in just a matter of a few days, on social media. This follows the election of Delaware Democrat Sarah McBride as the first openly transgender congressmember. McBride dismissed the Capitol bathroom bans as a distraction during a recent interview on CBS.

REP.-ELECT SARAH McBRIDE: Some members of the small Republican conference majority decided to get headlines and to manufacture a crisis.

AMY GOODMAN: Chase Strangio joins us now, co-director of the American Civil Liberties Union’s LGBTQ & HIV Project. In a week, again, he becomes the first openly transgender lawyer to argue a case before the Supreme Court, looking at Tennessee.

Welcome to Democracy Now! There’s a lot to discuss here. Why don’t we begin with this case, in which you’re going to make history?

CHASE STRANGIO: Well, good to see you, Amy. Thank you for having me.

We are before the Supreme Court at this moment when transgender people are under so much scrutiny. And this comes on the tail of 24 states banning evidence-based medicine for transgender adolescents. And that is why we are before the Supreme Court now. One of those states is Tennessee. Tennessee has categorically banned medical treatment for adolescents only, when that treatment is prescribed in a manner that Tennessee considers inconsistent with a person’s sex.

So, what we’re arguing before the Supreme Court is that, look, this is a simple example of sex discrimination. Our clients — so, if you take, for example, a transgender adolescent boy, he cannot receive testosterone to live consistent with his male identity, because he was assigned female at birth. Had he been assigned male at birth, he could receive that same medication for that same purpose. That is sex discrimination. And Tennessee has to justify it, which the district court concluded that Tennessee just simply did not. The courts across the country that have actually looked at the evidence have repeatedly found that the claims about the harms of this treatment just do not hold up to even the slightest bit of scrutiny. But, of course, we lost in the appellate court. We’re now before the Supreme Court making the case that this is just a plain and simple example of sex discrimination, and the fact that it’s sex discrimination against trans people doesn’t make it any less unconstitutional.

JUAN GONZÁLEZ: And, Chase, this comes in a period when the Republican Party used anti-trans ads throughout the presidential campaign. I’m wondering your reaction to the impact of those ads around the country.

CHASE STRANGIO: Yeah, it is astonishing to think about $250 million that have been spent focused on a group that represents less than 1% of the population. I think it comes out to, you know, almost $100 to $200 per trans person in the United States.

And obviously, there are sort of two fundamental things that happen as a result of those ads. The first is just the impact on trans people ourselves. We are living in a climate in which we are being demonized, in which we are being blamed for structural failures of this country. Talk about scapegoating, if you’re blaming trans people for everything from, you know, changes in education to school shootings to changing gender norms across the board. So, that’s one aspect of this.

And then, the other is that this rhetoric — and, I will say, the post-election legitimizing of it by Democrats — is what creates the policy realities that we’re living under, the policy realities where you have 550 anti-trans bills introduced in a single year, resulting in the stripping away of healthcare that people rely on, resulting in Representative Mace targeting transgender people’s ability to access restrooms in federal buildings. This is a cascading reality of material harm for our community on top of the rhetorical and cultural harms that it is bestowing upon us.

AMY GOODMAN: I want to play a clip from one of Trump’s presidential campaign TV ads for those who didn’t see it, this particular one with transphobic messaging that aired, I think it was, over 15,000 times.

CHARLAMAGNE THA GOD: Kamala supports taxpayer-funded sex changes for prisoners.

SEN. KAMALA HARRIS: Surgery.

MARA KEISLING: For prisoners.

SEN. KAMALA HARRIS: For prisoners. Every transgender inmate in the prison system would have access.

CHARLAMAGNE THA GOD: Hell no, I don’t want my taxpayer dollars going to that.

DJ ENVY: And Kamala supports transgender sex changes in jail with our money.

NARRATOR: Kamala even supports letting biological men compete against our girls in their sports. Kamala is for they/them. President Trump is for you.

DONALD TRUMP: I’m Donald J. Trump, and I approve this message.

AMY GOODMAN: “Kamala is for they/them. Donald Trump is for you.” And yesterday, Kamala Harris spoke, and a bunch of the senior members of her staff spoke out on Pod Save America, and a lot of the discussion in that conversation was about how they dealt with these ads. I’m very interested, Chase, as you say, that you are faulting the Democrats in how they’re dealing with this, that they are normalizing this. Explain.

CHASE STRANGIO: Well, so, it’s not even that they’re normalizing it. What they’re saying is that the Harris campaign did too much to support trans people, which is a hard pill to swallow, since they did nothing. You know, Kamala Harris did not respond to the ads. She did not make any affirmative statements in support of trans people throughout the —

AMY GOODMAN: I mean, that’s very interesting, because apparently they floated the ad first, the Republicans, to see if there would be a response. When there was dead silence, they just went for it.

CHASE STRANGIO: Yeah, so they went for it. And then, in the aftermath of the election, you have this postmortem in which you have Democrats — you know, pundits, as well as politicians — speaking out and saying, “Well, part of why the Harris campaign lost is because they were too supportive of trans people.” But what did they do? Nothing. And so, the obvious, you know, takeaway from that is, well, they should have just joined in the attacks. They should have said, “Yes, it is. Of course we should exclude trans girls from sports. Of course we should deny people in government custody of medical treatment.”

These are constitutional norms that they are sensationalizing because — and playing into people’s misunderstanding about trans people and our bodies. And they played on that misinformation, and they played on that fear, in a campaign that was both about trans people and also about gender more broadly. And what trans people represented in that was the instability of gender roles that were causing so much anxiety. I mean, that’s why you saw Vice President-elect Vance talking about the role of postmenopausal women is to care for children. Childless cat ladies, you know, should — or whatever else he said about that to demonize people who aren’t playing the proper gender roles. It wasn’t just about trans people. Trans people were a very specific focus, but this was a broader commentary on an approach to gender that is regressive and dangerous for everyone.

JUAN GONZÁLEZ: And, Chase, in your arguments on the Tennessee case before the Supreme Court, what are you — especially given the large conservative majority on this court, what will you be looking for in terms of the kinds of questions that the justices will ask or what hope you might have of swaying some of the conservative justices?

CHASE STRANGIO: Yeah, so, you know, at the end of the day, this really is a simple argument about a law that tells us 10 times over on its face that it’s about sex. It says you can’t do something if it’s inconsistent with your sex. And Tennessee comes in and says, “Well, that’s not really about sex.” But that sounds a lot like the arguments that the employers raised in the case of Bostock, where the question was: Is it because of sex to fire someone for being transgender? And that was a conservative-majority court that said 6 to 3 that that is because of sex, that if you are firing someone because they are transgender, that means you are firing someone assigned male at birth because they identify as a woman, and you are not firing someone assigned female at birth because they identify as a woman. The same is true here. We’re making that same argument. We think it is as clear in this context as it was in Bostock. And our hope is that the cultural anxiety about trans people, the demonization of our healthcare, is not going to sway the justices from applying straightforward constitutional principles that have been applied for 50 years.

AMY GOODMAN: So, you’re arguing this case — this is unusual, isn’t it? — alongside the Biden administration.

CHASE STRANGIO: So, it is not totally unusual. You often have a situation where private parties will bring a case, and the United States will intervene, or the United States can weigh in at the Supreme Court as amicus.

What is a little bit unusual here is that you really have us as coequal parties in this case. We are splitting the time, with the solicitor general going first, and I will go after her, and making this argument, both of us, that this is a law that violates the Equal Protection Clause and that the court, if it is going to faithfully apply its precedents that say that when a government discriminates based upon sex, that it is the government’s burden. It’s Tennessee’s burden to show that the statute that they’ve passed is constitutional, and they have failed to do that. So we are in it together up until January 20th.

AMY GOODMAN: And then what happens? I mean, is there any possibility that this wouldn’t happen by January 20th and then the Trump administration would not be there next to you?

CHASE STRANGIO: So, that’s absolutely right. We fully expect the Trump administration to switch positions. That is not unusual also. There will be other cases in which the administration switches positions. This case was originally brought by the transgender adolescents and their parents, who we represent, against the Tennessee officials who are charged with enforcing this law that bans their healthcare. The parties will still be there. There’s no reason why the court would in any way be stripped of jurisdiction. So, we move forward past January 20th; it’s up to the Supreme Court, of course, what happens next.

AMY GOODMAN: I want to go back to what’s happened in these last few days in Congress, Republican House Speaker Mike Johnson speaking to reporters last week after South Carolina Congressmember Nancy Mace introduced this resolution to ban transgender women from using women’s restrooms at the Capitol, after the election of Delaware Congressmember Sarah McBride, the first openly trans congressmember. This is what he said.

REPORTER 1: Can you address the issue of the new bathroom?

REPORTER 2: Can you talk about the policy that you just issued?

SPEAKER MIKE JOHNSON: Yeah, I’m not sure what more there is to say.

REPORTER 1: Is it enforceable?

SPEAKER MIKE JOHNSON: Yeah, like all House policies, it’s enforceable. But we have single-sex facilities for a reason. And women deserve women’s-only spaces. And we’re not anti-anyone. We’re pro-women. And I think it’s an important policy for us to continue. It’s always been the — I guess, an unwritten policy, but now it’s in writing.

AMY GOODMAN: So, it’s an unwritten policy, but now it’s in writing. This is the House speaker, Republican Johnson. And I wanted to ask you about Nancy Mace, this campaign she is on. But it is new. Last year, in 2023, Congressmember Mace, during an interview with CBS News, proclaimed she was, quote, “pro-transgender rights and pro-LGBTQ.” Now she’s putting up little paper signs that say “biological” above the signs that say “women’s room.”

CHASE STRANGIO: Yeah, so, I think one thing to keep in mind is that the cultural discourse and the popular culture norms shift what happens in law and policy. If you look at the tenor of the conversations in this country, it’s shifted so far against trans people that now we have proposed bans on transgender people using restrooms in all public buildings. A few years ago, let’s say in 2019, the question of trans people in restrooms had really died out. It was something where the proponents of those bans admitted that all of their claims were fabricated, that there was no evidence that there was any harm or violence by allowing trans people to use restrooms that align with who they are, which of course they do, we do, all the time. And this idea that there is some unwritten rule in which people are surveilled out of restrooms is just simply not true. It is not enforceable, as we know. But this escalation is a product of the ways in which our public discourse has shifted so dramatically around gender and around trans people.

AMY GOODMAN: Are you nervous about next week? You are making history, Chase.

CHASE STRANGIO: You know, of course I’m nervous. I’m nervous because I am always nervous to do right by my community. The stakes are so high, where this argument is happening in the period of time after the election, before the inauguration, a time when trans people are feeling so vulnerable, a time when, you know, I hear every single day from parents who are asking me if they have to leave the United States. And so, that is what I’m carrying with me. You know, I’m nervous for December 4th. I’m nervous for 2025. We don’t know what we’re up against.

But I guess the two things I’ll say are that, one, this case is a fight to put a limit on what government officials can do to target trans people across the board, and we are going to fight with everything that we have. And then, the other thing I’ll say, specifically to the trans community, to the people who love trans people, is we have always resisted. We have always taken care of each other. No matter what happens, that is what we’ll do.

AMY GOODMAN: Chase Strangio, on December 4th, he becomes the first openly transgender attorney to argue a case before the U.S. Supreme Court. Chase is co-director of the American Civil Liberties Union’s LGBTQ & HIV Project. We thank you so much for being with us. We hope to talk to you after you make your arguments.

On the campaign trail, Donald Trump tried mightily to reassure abortion rights supporters, vowing he would not sign into law a nationwide abortion ban even if Congress sent him one.

But once he returns to the White House in January, Trump can make abortions difficult — or illegal —across the United States without Congress taking action at all.

The president-elect will have a variety of tools to restrict reproductive rights in general and abortion rights in particular, both directly from 1600 Pennsylvania Ave. and from the executive agencies he’ll oversee. They include strategies he used during his first term, but also new ones that emerged in the wake of the Supreme Court’s overturn of Roe v. Wade in 2022.

The Trump transition team did not respond to a request for comment on this topic.

By far the most sweeping thing Trump could do without Congress would be to order the Justice Department to enforce the Comstock Act, an 1873 anti-vice law that bars the mailing of “obscene matter and articles used to produce abortion.”

While Roe was in effect, the law was presumed unconstitutional, but many legal scholars say it could be resurrected. “And it is so broad that it would ban abortion nationwide from the beginning of a pregnancy without exception. Procedural abortion, pills, everything,” Greer Donley, an associate professor and abortion policy researcher at the University of Pittsburgh Law School, said on KFF Health News’ “What the Health?” podcast early this year.

Even if he does not turn to Comstock, Trump is expected to quickly reimpose restrictions embraced by every GOP president for the past four decades. When Trump took office in 2017, he reinstituted the “Mexico City Policy” (also known as the “global gag rule”), a Ronald Reagan-era rule that banned U.S. aid to international organizations that support abortion rights. He also pulled U.S. funding for the United Nations Population Fund. Both actions were undone when President Joe Biden took office in 2021.

Those aren’t the only policies Trump could resurrect. Others that Trump imposed and Biden overturned include:

• Barring providers who perform abortions and entities that provide referrals for abortion (such as Planned Parenthood) from the federal family planning program, Title X. The Trump administration imposed the rules in 2019; Biden formally overturned them in 2021.
• Banning the use of human fetal tissue in research funded by the National Institutes of Health. The Trump administration issued guidance barring the practice in 2019; the Biden administration overturned it in 2021.
• Requiring health plans under the Affordable Care Act to collect separate premiums if they offer coverage for abortion. The 2019 Trump administration regulation was overturned by Biden officials in 2021.
• Allowing health providers to refuse to offer any service that violates their conscience. The 2019 Trump administration regulation — a revision of one originally implemented by President George W. Bush — had already been blocked by several appeals courts before being rescinded and rewritten by the Biden administration. The new, narrower rule was issued in January.

Anti-abortion groups say those changes are the minimum they expect. “The commonsense policies of President Trump’s first term become the baseline for the second, along with reversing Biden-Harris administration’s unprecedented violation of longstanding federal laws,” Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, said in a statement to KFF Health News.

Dannenfelser was referring to the expectation that Trump will overturn actions that Biden took toward protecting abortion rights after the Supreme Court’s decision. Some included:

• Providing that members of the military and their dependents who live in states with abortion bans be permitted to take leave and travel to other states for reproductive health care.
• Allowing VA medical facilities to provide abortion counseling and, in limited circumstances, abortions to veterans and VA beneficiaries, regardless of the laws in the state where the facility is located.
• Expanding the availability of the abortion pill mifepristone.
• Clarifying that the Emergency Medical Treatment and Active Labor Act of 1986 requires hospitals to provide abortions to women with pregnancy complications that threaten their health, not just their life regardless of state law.

Even easier than formal changes of policy, though, Trump could simply order the Justice Department to drop several cases being heard in federal court in which the federal government is effectively arguing to preserve abortion rights. Those cases include:

• FDA v. The Alliance for Hippocratic Medicine. This case out of Texas challenges the FDA’s approval of the abortion pill mifepristone. The Supreme Court in June ruled that the original plaintiffs lacked standing to sue, but attorneys general in three states (Missouri, Idaho, and Kansas) have stepped in as plaintiffs. The case has been revived at the U.S. District Court for the Northern District of Texas.
• Texas v. Becerra. In this case, the state of Texas is suing the Department of Health and Human Services, charging that the Biden administration’s interpretation of a law requiring emergency abortions to protect the health of the pregnant woman oversteps its authority. The Supreme Court denied a petition to hear the case in October, but that left the possibility that the court would have to step in later — depending on the outcome of a similar case from Idaho that the justices sent back to the Court of Appeals.

Whether Trump will take any or all of these actions is anyone’s guess. Whether he can take these actions, however, is unquestioned.

HealthBent, a regular feature of KFF Health News, offers insight into and analysis of policies and politics from KFF Health News chief Washington correspondent Julie Rovner, who has covered health care for more than 30 years.

Subscribe to KFF Health News' free Morning Briefing.

This article first appeared on KFF Health News and is republished here under a Creative Commons license.