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Legal news from Friday, May 27, 2011

Vermont passes single-payer health care law
Julia Zebley on May 27, 2011 2:39 PM ET

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[JURIST] Vermont Governor Peter Shumlin [official website] signed a health care reform law [H 202 text, PDF] on Friday that promises [press release] to make a state single-payer system. The law, designed to reform Vermont's entire health care system, will regulate health insurance premiums and health care provider payments, putting providers on a budget and rewarding them for efficiency, rather than a "fee-for-service" structure.
As provided in Sec. 4 of this act, upon receipt by the state of necessary waivers from federal law, all Vermont residents shall be eligible for Green Mountain Care, a universal health care program that will provide health benefits through a single payment system. To the maximum extent allowable under federal law and waivers from federal law, Green Mountain Care shall include health coverage provided under the health benefit exchange established under chapter 18, subchapter 1 of Title 33; under Medicaid; under Medicare; by employers that choose to participate; and to state employees and municipal employees.
Although the law is signed, the plan to fully implement and finance single-payer health care will not be completed until 2014 at the earliest. Shumlin acknowledged that people have questions, and stated the next steps to universal health care will not be taken without the approval of Vermonters.
The law also creates a state health insurance exchange. Some have criticized the law [Burlington Press report] for eventually destroying private health insurance and being impossible to fund. Others suggest it will save [Reuters] $580 million annually, and $1.9 billion by 2019.

Unlike the national Patient Protection and Affordable Care Act (PPACA) [HR 3590; JURIST news archive], the Vermont law guarantees state health insurance to every citizen, whereas the PPACA has a mandate for every citizen to purchase health insurance of some form, likely private unless they are eligible for Medicare. Court challenges to the PPACA continue across the nation. Last week, the American Center for Law and Justice (ACLJ) sought reinstatement [JURIST report] of its dismissed lawsuit challenging the constitutionality of the health care reform law. In April, the US Supreme Court denied [JURIST report] Virginia's request for the court to rule on the constitutionality of the health care reform law on an expedited basis. A judge for the US District Court for the District of New Jersey rejected [JURIST report] a lawsuit challenging its constitutionality, on jurisdictional grounds of standing [Cornell LII backgrounder], similar to a dismissal [JURIST report] in the US District Court for the District of New Hampshire. A judge for the US District Court for the Northern District of Florida struck down the law in January, while in October, a judge in Michigan upheld the law [JURIST report]. US Courts of Appeal for the Third, Sixth and Fourth circuits are all hearing oral arguments in appeals of lower court rulings, while appeals are pending in the DC circuit as well as the Eighth and Ninth circuits.

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South Dakota abortion waiting period challenged
Jaclyn Belczyk on May 27, 2011 2:22 PM ET

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[JURIST] Planned Parenthood and the American Civil Liberties Union (ACLU) [advocacy websites] filed a lawsuit [complaint, PDF] Friday challenging a South Dakota law [HB 1217 materials] requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion [JURIST news archive]. The law, signed [JURIST report] by Governor Dennis Daugaard [official website] in March, is set to take effect July 1 and would impose the longest waiting period in the country. The groups filed suit in the US District Court for the District of South Dakota [official website] seeking to have the law declared unconstitutional. According to the complaint:
If the Act takes effect, it will deny, among other things, Plaintiffs' patients their constitutional right to decide whether to have a child, as well as their patients' and physicians' First Amendment freedoms and their patients' right to informational privacy; and subject Plaintiffs and their physicians to significant licensing penalties, including revocation of Planned Parenthood's license to operate a health care facility in Sioux Falls and its physicians' licenses to practice medicine, as well as criminal and civil penalties. To avoid this irreparable harm, Plaintiffs seek declaratory and injunctive relief against the Act.
South Dakota law already requires that women wait 24 hours and be offered the opportunity to view a sonogram before undergoing an abortion procedure.

Several other states have also acted recently to tighten restrictions on abortions. Earlier this week, Minnesota Governor Mark Dayton [official website] vetoed a pair of bills [JURIST report] that restricted state funding for abortions and banned them altogether after 20 weeks. Last week, Texas Governor Rick Perry [official website] signed into law a bill that requires women seeking an abortion to first get a sonogram [JURIST report]. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Ohio, Oklahoma, Iowa, Kansas and Idaho [JURIST reports].

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South Korea court sentences 4 Somali pirates
Julia Zebley on May 27, 2011 2:16 PM ET

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[JURIST] A South Korean court sentenced a Somali pirate to life in prison, and three others to varying long-term sentences on Friday, for hijacking a South Korean ship. A fifth pirate pleaded guilty and was tried separately. The five men were charged with hijacking, maritime robbery and six other crimes, and they went on trial [JURIST reports] earlier this week. Mahomed Araye was sentenced to life imprisonment [Korea Times report] for an attempt to kill the captain of the ship, while the other three were sentenced to 13 to 15 years in prison. The defense claimed Araye did not attempt to kill the captain, and no one saw him fire the shots. Lawyers for the defense said they intend to appeal [AFP report].

This month, 10 pirates involved in hijacking a yacht, which resulted in the deaths of four Americans, pleaded guilty in Virginia [JURIST reports]. Spain's National Court sentenced [JURIST report] two Somali pirates to 439 years in prison each for their involvement in the 2009 hijacking of a Spanish fishing boat off the coast of Somalia. Last month, a US district court sentenced a Somali pirate to 25 years in prison [JURIST report] for his role in attacking a Danish ship, as well as the US Navy's USS Ashland. In November, a federal jury in Virginia convicted [JURIST report] five Somali men on charges of piracy for their roles in an April attack on the USS Nichols. In August, piracy charges against six defendants were dismissed [JURIST report] when federal Judge Raymond Jackson ruled that piracy, as defined by the law of nations, does not include violence or aggression committed on the high seas, and rejected the government's argument for an expanded reading of the statute. Piracy remains an issue of international concern, as few countries have been willing to prosecute suspected pirates. The few that have attempted to do so include Germany, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].

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Europe rights court rules against Poland in abortion case
Julia Zebley on May 27, 2011 12:50 PM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment] on Thursday that a Polish woman who had been denied genetic testing [press release, PDF] and an abortion [JURIST news archive] was subjected to "inhuman treatment." The court found violations to Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life) of the European Convention on Human Rights [text].
Because the decision to continue or terminate a pregnancy had a profound effect on a woman's private life, including her physical and moral integrity, any interference with this decision must be analysed in light of the woman's right to privacy. This was true regardless of whether the interference directly affected the woman's access to legal abortion or affected it indirectly, by denying her the prerequisite healthcare she needed in order to make a decision regarding continuation or termination of the pregnancy. Numerous international conventions broadly recognised a woman's right to the highest attainable standard of health, including access to appropriate reproductive care. Privacy was particularly important in the case of sexual and reproductive healthcare, which must be provided in a manner consistent with women's rights to personal autonomy.
RR, the plaintiff, was pregnant and after several ultrasounds, believed her child to be "malformed." Signifying her intent to have an abortion if the child was disabled, she requested an amniocentesis. Her doctor refused both to perform the genetic test and to abort RR's fetus. She was also informed the hospital in question had refused to perform abortions for 150 years. After several more attempts to get an abortion were thwarted, RR gave birth to a girl with Turner syndrome. RR is to receive 45,000 euros in non-pecuniary damage and 15,000 euros for costs and expenses from Poland. Either party has three months to appeal to the Grand Chamber of the Court.

The ECHR has previously been called to rule on abortion rights in its signatory countries. In December, the ECHR ruled [JURIST report] that Ireland failed to provide "effective and accessible procedures" to allow a Lithuanian women to assert her constitutional right to a lawful abortion. In 2007, Polish Prime Minister Jaroslaw Kaczynski declared that Poland planned to appeal a ruling [JURIST reports] by the ECHR that found Poland in violation of Article 8 for prohibiting a pregnant woman who had a serious risk of vision loss if she carried the pregnancy to term from obtaining an abortion. The ECHR rejected this appeal [JURIST report], reinforcing that the Polish government did not provide any procedural framework to resolve a dispute concerning whether a medical exception should be granted, or to facilitate "effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met." Gerolf Hagens [professional profile] has analyzed [JURIST comment] the ECHR's rulings on abortion.

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Patriot Act extended through 2015
Julia Zebley on May 27, 2011 10:49 AM ET

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[JURIST] US President Obama signed a four-year extension [press release] of the Patriot Act [materials; JURIST news archive] late Thursday night, minutes before it was set to expire. The bill passed the US Senate [official website] 72-23 [roll call vote], and shortly after passed the US House of Representatives [official website] by a vote of 250-153 [roll call vote]. Although major congressional leaders of both parties had agreed to a clean extension of the act [JURIST report] last week, delays were met when Senator Rand Paul (R-KY) [official website] filibustered the bill over the lack of an amendment process and serious concerns about privacy. After three days of filibustering, Paul received votes on two amendments that ultimately failed, both related to the ability of security officials to survey gun purchases. Controversial provisions renewed include provisions allowing the government to use roving wiretaps on multiple carriers and electronic devices and allowing the government to gain access to certain records relevant to its investigations. The "lone wolf" provision enables investigators to get warrants to conduct surveillance over targets not connected to any particular terrorist group.

Last February, the House passed a short-term extension until May 27 of the controversial surveillance provisions after they were set to expire on February 28, two days after the Senate passed [JURIST reports] the bill by an 86-12 vote. Earlier that week, a simple majority of the House approved a similar bill that would have extended the three provisions until December after it had failed [JURIST reports] the prior week under a special rule that required a two-thirds majority. Prior to that vote, the Obama administration released a statement of administration policy [text, PDF] vying for a three-year renewal of the provisions. The provisions were extended in February 2010 after the Obama administration asked the Senate Judiciary Committee to extend [JURIST reports] the Patriot Act.

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Serbia judge finds Mladic fit for extradition
Julia Zebley on May 27, 2011 9:11 AM ET

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[JURIST] A Serbian judge on Friday found Ratko Mladic [JURIST news archive] fit for extradition, despite concerns about his age and health. Serbian authorities captured [ICTY press release] Ratko Mladic on Thursday, ending a 16-year manhunt [JURIST report] for the former general colonel and commander of the army of the Serbian Republic of Bosnia and Herzegovina. Mladic's lawyer stated his client was not able to communicate well due to his fragile state, and the proceedings were then suspended briefly, but Mladic has been found fit to stand trial [B92 reports] and will be extradited to begin his hearings at the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. There have been no questions about his mental competence, as he told his lawyer [Guardian report] that "he is aware he is under arrest, he knows where he is, and he said he does not recognise The Hague tribunal." Mladic has three days to appeal the decision.

Reactions continue to pour in around the world, many positive, but some wary. UN Secretary-General Ban Ki-Moon [official website] praised the arrest [statement]: "This is a historic day for international justice and for the world's collective fight against impunity. It sends a powerful message that those who are alleged to have committed crimes against humanity may try to evade justice but they will, in the end, be held accountable." Fellow indicted war criminal, currently undergoing trial at the ICTY, Radovan Karadzic [JURIST news archive] said [AP report], "President Karadzic is sorry for Gen. Mladic's loss of freedom and he looks forward to working with him to bring out the truth about what happened in Bosnia." Russian officials have expressed tepid approval of the arrest, but pointed out alleged inconsistencies in the ICTY trials [B92 report] and hoped Mladic would be treated fairly. Demonstrations began Thursday night in Serbia [B92 report], with approximately 700 people protesting Mladic's arrest. Belgrade authorities have ordered a ban on public gatherings in reaction. The Serb Radical Party (SRS) [political website, in Serbian] announced [press release, in Serbian] a rally for Mladic on Sunday.

Mladic was one of the two remaining at-large war criminals sought by the ICTY, along with Goran Hadzic. Mladic faces charges [amended indictment, PDF] of genocide and crimes against humanity, including murder, political persecution, forcible transfer and deportations, cruel treatment and the taking of peacekeepers as hostages. He is most infamous for ordering the slaughter of 8,000 Muslim men and boys in the massacre of Srebrenica during the Bosnian civil war [JURIST news archives]. In December, the First Municipal Court in Belgrade acquitted 10 men [JURIST report] suspected of helping Mladic evade arrest. In September, ICTY prosecutor Serge Brammertz [official profile] called on Serbia and other governments [JURIST report] to increase efforts to find and arrest Mladic. Brammertz said failure to arrest Mladic would send war criminals the message that if they avoid capture long enough, the world will cease to care about bringing them to justice. Brammertz also emphasized the importance of seeking justice for Mladic's victims. Authorities must work quickly to arrest Mladic, Brammertz noted, since the ICTY is scheduled to be shut down in three years. Last May, Mladic's family filed a claim in the Belgrade District Court seeking to have him declared officially dead [JURIST report] in order to collect his state pension and sell his property. Earlier that month, the ICTY announced that the Office of the Prosecutor filed a motion to amend the indictment against Mladic [JURIST report] to include 11 counts of genocide, crimes against humanity and violations of the laws and customs of war in order to help speed up court proceedings.

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Egypt housing minister sentenced to 5 years for illegal land deal
Dan Taglioli on May 27, 2011 7:32 AM ET

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[JURIST] An Egyptian court on Thursday convicted a former housing minister of corruption and sentenced him to five years in prison. Ahmed al-Maghrabi was found guilty of illegal acquisition of state land [Reuters report] for his part in the sale of the 18 acres of land to a prominent businessman, who was convicted in the same case and given a one-year suspended sentence. The public land was sold without auction and well below market value, in violation of a 1998 law. As a result, the two men were found guilty of wasting public funds and ordered to repay 72 million Egyptian pounds (USD $12.6 million) to the state for damaging public finances, and were then together fined an additional 72 million pounds. At this time Maghrabi also faces charges of profiteering and wasting public funds in another corruption suit involving a relative.

Maghrabi is the third senior minister from the regime of ousted president Hosni Mubarak [Al Jazeera profile] to be sentenced to a prison term. Earlier this month, an Egyptian criminal court convicted [JURIST report] the country's former tourism minister, Zoheir Garranah, for corruption and sentenced him to five years in prison. In April, Egyptian prosecutors charged [JURIST report] former prime minister Ahmed Nazif, former finance minister Yousef Boutros and former interior minister Habib el Adly with corruption. In March, a commission of Arab and Egyptian human rights groups accused the former president [JURIST report] and the country's police of murdering protesters during the demonstrations. The joint commission submitted their report to Egypt's top prosecutor for further investigation. The Supreme Military Council of Egypt, which assumed power after Mubarak's resignation, instructed Egypt's top prosecutor to investigate the death of protesters [RIA Novosti report] during the three weeks of demonstrations in the country. Last week Amnesty International reported that at least 840 people were killed [JURIST report], and more than 6,000 were injured, during the Egyptian protests.

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Italy court sentences Ex-Nazi soldiers to life imprisonment
Dan Taglioli on May 27, 2011 6:00 AM ET

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[JURIST] A military tribunal in Rome has convicted three former German soldiers of multiple murders committed during World War II. The three men were tried in absentia and sentenced to life imprisonment [UPI report] for their parts in the massacre of 184 civilians in the village of Padule di Fucecchio in Tuscany on August 23, 1944. The killings of 94 mostly elderly men, 63 women and 27 children constituted one of the worst Nazi atrocities in Italy during the war. A year afterward Sgt. Charles Edmonson of the Special Investigations Branch became determined to find the perpetrators and took detailed accounts from witnesses. After Edmonson died in 1985 the statements were found in a cupboard in his home and later formed part of the prosecution's case against the three Germans. The ex-soldiers, 88, 91 and 94 years old, are not expected to serve time in prison because Germany is not required by law to release them into Italian custody. In addition to the life sentences, the court handed down an order for Germany to pay €12 million to surviving relatives of the victims, but Germany maintains it is not liable due to provisions of the 1947 Treaty of Peace [materials] and the 1961 Bilateral Compensation Agreement for Victims of the Nazi Regime.

A fourth defendant died during trial at the age of 100, a reminder that recent trials for Nazi atrocities will likely be some of the last. Earlier this month a Hungarian court began the trial [JURIST report] of accused Nazi Sandor Kepiro, who was named as the world's most wanted Nazi war crimes suspect by the Simon Wiesenthal Center (SWC) [advocacy website], a Jewish human rights organization committed to finding and prosecuting Holocaust war criminals. Also this month, a German court convicted [JURIST report] Nazi guard John Demjanjuk [NNDB profile; JURIST news archive] for his role in murdering 28,000 at the Sobidor Death Camp. Demjanjuk, 91, was sentenced to five years in prison but released because of his advanced age and because appeals could take years. In November, Nazi guard Samuel Kunz [Trial Watch profile], 89, passed away [JURIST report] in his home before he could be brought to trial. He was accused of aiding in the killing of hundreds of thousands of Jewish people at the Belzec concentration camp [HRP backgrounder].

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For more legal news check the Paper Chase Archive...


Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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