All the Minds Are Criminal

More bills and rulings that ignore science and public opinion

We’ve been watching a lot of Criminal Minds in my house recently. The CBS procedural is very dark. So dark that actor Mandy Patinkin (of Inigo Montoya fame) left after a few seasons, saying that the content —with depictions of murders week after week—was “destructive to [his] soul and personality.”

I get that and have had a few choice nightmares, but it’s one of the few shows my kids will agree to watch together and it’s comfortingly predictable. The BAU team will put together a profile, Penelope will find something online to match it to an unsub, and with seconds to spare agents clad in bullet-proof vests that scream FBI will save the last victim (who will need years of therapy to recover from this week’s trauma, but that happens off screen).

Searches for DNA are often integral to the plot, and we always assume that the evidence is in the system because a person already committed a crime. A case out of California, however, suggests that’s not necessarily true. 

A woman is suing San Francisco after DNA collected as part of her rape kit was used to charge her with stealing property years later. The woman, who is going by Jane Doe to protect her privacy, was part of a domestic violence and sexual assault case in 2016. Investigators often ask victims for a sample of their DNA so they can distinguish it from that of the perpetrator. In San Francisco victims’ samples were put into a database along with samples collected from people who committed crimes. Four years later, a crime lab search matched her DNA to stolen property, and she was arrested.

Federal law already prohibits victims’ DNA from being stored in the National Combined DNA Index System (which is undoubtedly what Garcia is always searching), but California did not have such a law. As soon as it became clear where the evidence against Jane Doe came from, the District Attorney’s office dropped the charges. A spokesperson for the DA said the office did not realize such DNA searches were happening and the DA did not want to do anything that would dissuade future victims from coming forward. Both the DA and the Police Chief vowed to stop the practice.

California legislators also took action; they passed a bill last month that prohibits law enforcement from using DNA profiles from victims for any purpose other than identifying the perpetrator. The law, which is awaiting Governor Newsom’s signature, also specifically prohibits law enforcement from “…retaining and then searching victim DNA to incriminate them in unrelated crimes….”

Jane Doe says that she felt violated again when her DNA was used to charge her with a crime. Her lawyer said in a statement: “This is government overreach of the highest order, using the most unique and personal thing we have – our genetic code – without our knowledge to try and connect us to crime.”

I’m not entirely joking when I say this is one of the reasons that I haven’t used ancestry.com or 23andme. I really would rather my DNA stays out of the system. Perhaps I’m watching too much Criminal Minds?

Judge Rules Against Preventative Care Provisions in ACA

A couple of weeks ago we talked about the case that John Kelley and his friend brought against the federal government challenging the Affordable Care Act’s (ACA’s) coverage of preventive services. The plaintiffs in that case argued that they should not be forced to buy insurance plans that cover preventative care for free. Specifically, they argued that they shouldn’t have to pay for contraception because they don’t need it and they shouldn’t have to pay for HIV prevention because they are morally opposed to all of the behaviors that might cause someone to need PrEP. As expected, the judge ruled in their favor last week though he is asking for more information from the two sides before making a final ruling. The exact outcome of this ruling is unclear but free mammograms and colon cancer screenings are definitely in jeopardy.

The first part of Judge Reed O’Connor’s ruling takes on the U.S. Preventive Services Task Force (UPSTF). This is a nongovernmental advisory panel made up of volunteer experts who look at the benefits and costs of preventative services. After weighing the evidence, the UPSTF gives each service a grade. Coverage for preventive services under ACA is based on these ratings. Instead of making legislators decide which services get covered and which do not (because we all know Congressmen totally get how the human body works), the law says that anything given an A or B rating by the UPSTF must be covered by insurance plans without co-pays.  

Judge O’Connor does not like this system. His ruling essentially declares the UPSTF unconstitutional because these volunteers serve as “agents of the government” and their decisions are binding, but the members are not confirmed by Congress.

Interestingly, ACA’s contraceptive mandate does not fall under this part of the ruling because decisions about which birth control methods to cover are made by a different body of experts. Vaccines also do not fall under the UPSTF as there is yet another task force charged with evaluating them. While he does not think these two advisory committees are unconstitutional in the same way, O’Connor did ask both parties to discuss the contraceptive mandate in their next filing so he may have more to say on that later.

The other half of O’Connor’s ruling is even more infuriating. He agreed with the plaintiffs that they should not be required to pay for coverage of PrEP because of their religious views. The Judge wrote:

“The PrEP mandate substantially burdens the religious exercise of Braidwood’s owners. Braidwood is a for-profit corporation owned by Steven Hotze. Hotze objects to providing coverage for PrEP drugs because he believes that

 (1) the Bible is “the authoritative and inerrant word of God,”

(2) the “Bible condemns sexual activity outside marriage between one man and one woman, including homosexual conduct,”

(3) providing coverage of PrEP drugs “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman,” and

(4) providing coverage of PrEP drugs in Braidwood’s self-insured plan would make him complicit in those behaviors.”

You read that right, this random guy who owns a business believes that God says gay sex is bad and, therefore, no one should get lifesaving preventive drugs for free. It doesn’t matter that our country was founded on the separation of church and state. It doesn’t matter that Steve Hotze and John Kelley are wrong about how you get HIV (there are other ways) and equally wrong about whether prevention options encourage risky behaviors (scads of research says they don’t). It only matters what these two businessmen believe.

This echoes the Supreme Court’s decision in Burwell v. Hobby Lobby (2014). First, that decision set the precedent that a private company could be considered a “person” with religious beliefs and, therefore, protected by the Religious Freedom Restoration Act of 1993 (RFRA). The majority opinion, written by everyone’s new favorite Justice Samuel Alito, then went on to throw science under the bus or at least out the window:

“Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.”

In that case, it didn’t matter whether those four contraceptive methods actually caused abortions (spoiler: they don’t) or that countless major medical organizations filed amicus briefs attesting to the fact that this interpretation was wrong. It only mattered that a family who made a fortune selling paint brushes and glue guns (who have since come under fire for stealing religious relics from Iraq) believed that they did.

Now, we’re turning that reasoning into a justification for homophobia.

It's unclear whether either part of Judge O’Connor’s ruling will hold up. The Judge has asked for more filings from both parties and still has some decisions to make. According to Kaiser Health News, he could decide that his ruling only applies to these plaintiffs, that it applies to all people in Texas with similar beliefs, or that it applies to everyone in the U.S. who has insurance. The Biden Administration is also considering whether to appeal the ruling which seems likely especially if the judge applies it broadly.

Judge O’Connor, a George W. Bush appointee whom the New York Times described as the “go-to-judge for Republicans and conservatives seeking to challenge government policy,” ruled against the ACA in its entirety in 2018. That time he argued that Congress had invalidated the law when it dropped the individual mandate. His ruling was ultimately overturned by the Supreme Court. Given how closely part of this decision mirrors SCOTUS precedent and the new even more conservative make-up of the court, however, taking this case all the way to the top feels frightening.

It seems so obvious to me that this case isn’t about the freedom to practice your religion as guaranteed by our constitution but instead about imposing your religious beliefs on other people, thereby taking away their freedom. I don’t think that’s what the founding fathers had in mind.

Graham Introduces National Abortion Ban, Even Republicans Are Pissed

Late yesterday, congressional Republicans led by Senator Lindsey Graham introduced a bill that would ban all abortions after 15 weeks nationwide. The bill has a ridiculous and inaccurate name: Protecting Pain-Capable Unborn Children from Late-Term Abortions Act. Late-term abortion is a purely political expression with no medical meaning and usually refers to abortions after at least 20 weeks. Fetal pain is also a political concept that is not backed by science. And, the bill’s name doesn’t even make for a good acronym—PPCUCLTAA does not have a ring to it.

The bill would make little impact in states with the strictest abortion laws because they already ban the procedure far earlier in pregnancy than 15 weeks. It would, however, impact about half of the states which have laws that allow abortion up to 20 or 24-weeks. So, Graham didn’t really mean it when he said after the Dobbs decision that leaving abortion regulations up to the states was the best idea?  (Shocking.)

To be clear, most abortions happen well before 20 weeks and those that happen after that point are often the result of fetal anomalies that can’t be detected earlier. When asked if his bill had exceptions for fetal anomalies, Graham said he didn’t know. (Shocking.)

It's unclear exactly what Graham, who has spent the last six years fellating Donald Trump, is doing (maybe he’s just bored without Donny around). This bill has no chance of passing a Democratic-controlled congress or being signed by President Joe Biden. While Democrats have been using abortion to rally their base ahead of the midterm elections, Republicans would rather not talk about it right now. It’s not that they care that most Americans want abortion rights, it’s that they can read polls and saw what happened in Kansas. They know this isn’t a winning issue for them this year.

One Republican strategist told NBC news that this “…rips open a political sore. The political environment was moving back to economic issues. It further nationalizes an issue that works against Republicans generically." Even the turtle king himself, Mitch McConnell, seems to wish he didn’t have to deal with this. When asked about the bill, he just said: “Most of the members of my conference prefer that this be dealt with at the state level.”  

Democrats, on the other hand, jumped on the new legislation as further proof of Republican zealotry and a fair warning of exactly what will happen if Congress falls back under GOP control. The White House called the bill out of sync with the voters and Speaker Nancy Pelosi said it was the “latest, clearest signal of extreme MAGA Republicans’ intent to criminalize women’s health freedom in all 50 states and arrest doctors for providing basic care.”

Perhaps Graham will change his mind in the midst of conflicting opinions as he has in the past. When Trump was running for office, Lindsay called him a “kook,” a “race-baiting bigot,” and “the most flawed nominee in the history of the Republican Party.” He then proceeded to spend the entirety of the Trump’s presidency as Donald’s most loyal congressional lap dog.