Author Archives: Stephen Diamond

Schooled, In debt, Struggling


Frank Wu, the dean of UC Hastings College of the Law, flutters about his third-floor office adjusting things, making sure his emails are answered and…

Source: Schooled, Indebt, Struggling

An up close and personal portrait of the challenges facing an important Bay Area law school as the “new normal” takes hold in legal services and education. A must read.

In victory for women’s rights, California agency blocks anti-choice effort at two universities

In a clear affirmation of the longstanding right of women and girls in California to choose whether or not to terminate a pregnancy, the Director of California’s Department of Managed Health Care (DMHC) this week rejected a multi-year effort by the administrations of two California universities affiliated with the Catholic Church to limit coverage of abortions in their employee health care plans.

California has long led the nation in the protection of a woman’s right to effective reproductive health care. Since the early 1970’s case law, statutes and the state Constitution itself have made it clear that under California law all women and girls possess a right to choose whether or not to terminate a pregnancy. Thus, the California Constitution enshrines an express right to privacy as a result of an amendment that followed court cases recognizing a woman’s right to choose. This was followed more recently (2002) by the Reproductive Privacy Act (RPA) which guarantees a woman’s right to both terminate a pregnancy and to birth control.

These fundamental rights to reproductive health care are reinforced by statutes that require state regulated health care plans including insurance plans and HMOs to provide coverage for safe and effective means to terminate a pregnancy once a woman or girl has exercised her right to choose that outcome.

There is only one category of abortion that an HMO or insurance provider would not be required to cover: an abortion that is illegal under the California Reproductive Privacy Act (termination of a pregnancy of a viable fetus is illegal under the RPA).

(One aspect of the law that confuses many is the question of what is a non-medically necessary abortion. Some anti-abortion advocates characterize such an abortion as “elective.” In fact, there is no category called “elective” abortion under California law unless one is referring to the right of a woman to “choose” to have an abortion (for whatever reason) in the sense that she may elect to have an abortion. A 1967 California statute called the Therapeutic Abortion Act attempted to create a distinction between abortions needed to protect the life of the mother and other abortions. At the time this was an advance from an era where all abortion was illegal. But the California Supreme Court struck down that attempt to create different classes of abortions In People v. Barksdale (1972) as “impermissibly vague.” The effect was to recognize abortions generally as legal in California prior to the US Supreme Court decision in Roe v. Wade. The TAA remained on the books, however, until expressly repealed by the RPA when it went into effect in 2003.

(The choice to have an abortion is, thus, separate from what kinds of medical or surgical methods are safe and effective to carry out that choice. Any such safe and effective method is considered “medically necessary” under the Knox-Keene Act and therefore will be part of providing a basic medical service that must be covered by a plan licensed under the Act by the DMHC, as the letters to the major insurers from the DMHC make clear. A non-medically necessary abortion is an oxymoron. Confusion may exist because some insurers explain to their beneficiaries that a request to use a drug like RU-486 for treatment of a medical condition other than pregnancy is considered “experimental” and therefore not “medically necessary.”)

Despite this clear Constitutional and statutory framework, in place since the mid-1970’s, certain entities affiliated with the Catholic Church have attempted to put in place new categories or distinctions that would carve out certain abortions from those that are protected under California law.

A few years after a resounding legal defeat at the California Supreme Court in 2004 (in an attempt to overturn the Women’s Contraception Equity Act), the Catholic Church apparently used its influence at Loyola Marymount University to get the University and its insurers to engineer in secret approval by the DMHC of an HMO product that would have prevented coverage of what Anthem called “elective” abortions as well as a wide variety of birth control methods. This restriction was approved in a hidden administrative process inside the DMHC, which has regulatory authority over the HMO industry in California, during the Schwarzenegger governorship. For more detail on that effort see my earlier post here.

DMHC records obtained through a Public Records Act request suggest that that 2008 decision was made on the basis of a relatively thin legal analysis with no reference to the Constitution or the RPA. In any case, Anthem did not in fact sell any HMO product based on that 2008 interpretation by the DMHC. Only in 2013 did Loyola Marymount University and Santa Clara University, both Jesuit affiliated schools, announce their intent to buy health care plans from Kaiser and Anthem that would exclude some abortion coverage.

Their announcement of this intention included new categorizations of abortions called “medically necessary” and “elective.” The new plans would have eliminated whatever was considered an “elective” as opposed to a “medically necessary” abortion. As explained above, the concept of an “elective” abortion does not exist in California law. Tellingly, neither the Universities nor the insurers ever definitively explained what kinds of abortions these new categories would include and provided no legal basis for these distinctions. At one point, Santa Clara University proposed language that mirrored that of the Hyde Amendment, attempting to define any abortion that was undertaken for anything other than to save the life of the mother as “elective.” Again, there was no basis for this kind of discriminatory language in California law, as the DMHC has now unambiguously agreed.

Faculty at Santa Clara University objected to this effort by the University Administration and its Trustees and, with the strong support of the campus chapter of the American Association of University Professors (AAUP), convened a special session of its Faculty Senate, apparently for the first time in the 150 year history of the school, to affirm its objections to the University’s new policy effort. Specifically, faculty objected to the failure of the University to abide by its commitment to shared governance in attempting the policy change. A campus wide vote of the faculty overwhelmingly approved this objection.

Several faculty demanded that the University define these new categories so that employees could understand the implications for their health care and to provide an explanation why these categories had a legal and constitutional basis in California. Many university staff and several student groups supported these efforts.

The University was never able to answer that challenge. University officials said they were attempting to answer those questions in conversations with Kaiser and Anthem. But no clear answer was ever provided. Instead, in the face of continued faculty and staff efforts to block the policy change, the trustees of Santa Clara publicly backed up the Administration and even went so far as to suggest that they were morally obligated to stop coverage for abortion because women faculty and staff might be using abortion to engage in “gender selection” of their children. This claim outraged many on the campus because it was not only facially absurd and not backed up by any serious research (in fact, quite the opposite, see here and here) but a racial slur aimed at Asian American communities. Unfortunately, this kind of charge has been used more widely of late by many in the anti-abortion movement.

Several faculty members at both SCU and LMU began a concerted effort last fall to raise objections to the proposed new restrictions with the State of California. Working closely with several advocacy groups including Planned Parenthood Affiliates of California, the ACLU of Northern California, the Trust Women Silver Ribbon Campaign and the National Health Law Program, extensive discussions with the DMHC took place.

Finally this past week the DMHC agreed unequivocally that the proposal by the University administrations at LMU and SCU had no basis in California law.

The Director of the DMHC, Michelle Rouillard, admitted that earlier approvals of new products that would have ended coverage of legal abortions were wrong. Further, she stated, using new discriminatory categories and limitations like “elective” abortions was inconsistent with both the California Constitution and the Knox-Keene Act. The letter, sent to seven major insurers, can be found here.

There has been widespread media coverage of the effort by SCU and LMU faculty and staff to defend reproductive freedom here, here and here. The ACLU has posted a blog about the DMHC letters here.

My review of Human Rights and Transnational Solidarity in Cold War Latin America ed. by Jessica Stites Mor

Misguided approaches to the Cold War and the authoritarian regimes supported by both Washington and Moscow abound. My hope that this volume would do a better job were disappointed.

Human Rights and Transnational Solidarity in Cold War Latin America

Global Tectonics: Pentagon confronts militant dilemma in Africa

As this story and fascinating accompanying map indicates, the US military presence in Africa follows major conflicts at the heart of global tectonics – the setting where a global grab for natural resources (from minerals to ivory) is uprooting traditional societies. Fundamentalist reactions are legion and thus the growing security problem.

The hum of US drones is becoming more familiar over African skies. From Nigeria to Somalia, US military presence on the continent is a creeping reality. US troops may be thin on the ground, with the Pentagon preferring to rely on training and

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Source: Pentagon confronts militant dilemma in Africa – FT.com

Global Tectonics: Why global water shortages pose threat of terror and war


From California to the Middle East, huge areas of the world are drying up and a billion people have no access to safe drinking water. US intelligence is warning of the dangers of shrinking resources and experts say the world is ‘standing on a precipice’

Source: Why global water shortages pose threat of terror and war | Environment | The Guardian

Are corporations people, too? A post-Hobby Lobby look back at the history and law

In the wake of the recent Hobby Lobby decision by the US Supreme Court readers may be interested in my earlier take on the corporate personhood debate published on line at Dissent Magazine here.

Is the stock market “rigged”? Evidence from the NYSE – presented at NU Kellogg and Duke

My co-author Stanford-based economist Jenny Kuan and I each traveled to different parts of the country recently to present our research on the problematic changes in stock market structures. I presented the paper at the meetings of SASE held at Northwestern’s Kellogg School of Business and Jenny presented the paper at the ISNIE meetings at Duke. We got helpful comments from both events and are honing in on a new draft for submission to a peer reviewed finance journal. Here are the slides I used in Chicago.

What The New Yorker’s Louis Menand gets right and wrong about the Equal Rights Amendment

I sent The New Yorker the following letter recently in reply to a very interesting essay by Louis Menand on the complicated interaction between the battle over civil rights for women and minorities. They have not printed it so I thought I would share it with readers of the blog:

To the editor,

Louis Menand is to be commended for bringing to light certain aspects of what I and my co-author, the late Hal Draper, describe in our study of the ERA (The Hidden History of the Equal Rights Amendment) coincidentally just published in the last few weeks by the Center for Socialist History.

While Mr. Menand notes correctly the close ties between business interests and proponents of the ERA he leaves out of his account one key historical fact and misstates one key impact of the passage of Title VII. The two are related in an important way and together they act as a key to understanding the full story we set out in detail in our book.

The key historical fact is that there were, always and from the very earliest period following suffrage, two versions the ERA. Left and liberal activists (including, for example, the social feminist Florence Kelley and the liberal Eleanor Roosevelt) promoted a “labor” ERA that would, indeed, have extended the benefits of protective labor legislation to men workers. Yet at every turn this genuinely progressive alternative ERA was attacked and undermined by Alice Paul and her allies in the business community who backed what we term the “pure” version of the ERA. There is no surprise about this alliance nor was there ever any confusion – Paul herself was from an upper class background and was a natural ally of business and professional women who aspired to join their male business counterparts at the top of our socio-economic hierarchy. Paul and her colleagues in the National Woman’s Party were enthusiastic about ending expensive labor laws that protected working class women.

The related misstatement is Mr. Menand’s bald conclusion that “Labor-protection laws did not disappear, as many liberals had feared; they were written to cover both sexes.” Oddly this follows his correct statement that a federal court found such laws unconstitutional. The court opinion is accurately cited [see Rosenfeld v. Southern Pacific, 444 F.2d 1219], his follow on conclusion has no basis. In state after state, in the immediate wake of the passage of Title VII, protective labor laws were stripped from the books and any chance of extending them to men workers was gone.

At least one of the authors cited by Mr. Menand clearly concurs. Jo Freeman wrote in her study of Title VII: “As a consequence [of the passage of Title VII] the federal courts voided state protective laws on the grounds that they were in conflict with the federal prohibition against sex discrimination …. These laws, which limited the hours women could work, the weights they could lift, often prohibited night work and entry into some occupations considered too dangerous for women, had been actively sought during the first half of the twentieth century by an earlier generation of women activists …. “[citations omitted]

We describe in detail this process in the book, including for example the bitter battle over these labor laws fought out in California between trade union women and the National Organization for Women.

Only when one puts these pieces of the ERA’s history together can one explain its ultimate failure during the ratification process, a step that Mr. Menand does not, understandably, attempt in his essay. By the time the amendment emerged from the Congress for ratification by the states, Title VII had already carried out the business side of the original Alice Paul/business agenda – elimination of protective labor laws. An attempt to extend the period for ratification of the ERA was defeated as the erstwhile allies of Alice Paul in Congress, such as Senator John Tower of Tennessee, backed away from her lifelong project.

Both working women and professional women still face significant discrimination in the workplace today and thus a full understanding of this history is crucial.

The hidden history of the Equal Rights Amendment – my newest book, better late than never

thThe Center for Socialist History has just published my book The Hidden History of the Equal Rights Amendment which I had the privilege of co-authoring with the late Hal Draper.

I drafted a new foreword for the book but it is otherwise unchanged from the original ms. which Hal and I finished in the late 1980’s in the wake of the defeat of the ERA. There has been some research on the Amendment since and certainly some important developments with respect to the rights of women but the publisher and I thought it important to retain the argument as it was completed then, more or less contemporaneously with the end of that era of the women’s movement. We did, of course, try to get it published then but ran into roadblocks which I describe briefly in the foreword.

The history we examine in detail is very much in the news today as this essay by Louis Menand in a recent New Yorker suggests. Menand gets some important aspects of the story wrong, however. I have sent the magazine a short letter in response and will wait to see if they print it before laying out my comments here.

The revolutionary dynamic that explains the rise of ISIS

I posted this originally last August only when the MSM showed no interest in it as an op-ed. I wonder if they share my regrets about the accuracy of my prediction?

Officially, the Obama Administration is firmly behind Syria’s democratic revolution organized to oust the brutal authoritarian Assad regime. If that were indeed the case it could, under certain conditions, represent an important step to assuring a bright future for Syria. There reportedly remains, however, substantial opposition inside the Administration and in Congress to the intervention.

Some of these opponents of U.S. involvement are invoking the problematic policies of the Reagan era when the United States created and armed Nicaragua’s counter-revolutionaries, or contras, to overthrow the Sandinista Government there in the mid-1980s. This is a misleading and cynical maneuver. In fact, Nicaragua offers a very different lesson when it comes to Syria.

There is little doubt that the intervention of the world’s sole superpower into a complex national conflict is fraught with challenges. In the wake of a decade of war, few Americans are enthusiastic about yet another intervention in the Middle East. And there are, naturally, suspicions in the region about the actual goals of U.S. policy. To be successful the strategy that guides the United States in Syria must reflect our democratic values, both to engender domestic U.S. support and to insure a successful transition to post-revolution stability in Syria.

In the wake of the battle of Qusayr, it is clear the rebels face daunting odds. We must recall, though, the rebels did not ask for war. The movement began peacefully, yet another chapter of the rolling social process know as the “Arab Spring.” But the Syrian dictatorship knew that a peaceful “civil rights” style challenge undermined their legitimacy and it began a brutal crackdown that forced the opposition to take up arms. While they have been joined by some dissident military figures, these ordinary Syrians are also now competing for leadership of their revolution with hard-core Islamic fundamentalists, some of them mercenaries from surrounding states, who are well organized and well armed.

That competition is, in fact, reminiscent of the Nicaraguan experience, but not of the contra war of the 1980’s that failed to oust the Sandinistas. Rather, as I show in my recently published book Rights and Revolution: The Rise and Fall of Nicaragua’s Sandinista Movement, the situation is analogous to the earlier 1970’s insurrectionary period that led to the ouster of the brutal and authoritarian Somoza regime. In that insurrection, the United States took a largely hands off stance, only distancing itself from Somoza very late. As a result, a democratic mass movement of ordinary Nicaraguans was, as in Syria, pushed into armed conflict by a violent dictator. Then, as may happen in Syria, that same movement turned to the small but well armed and well-organized neo-Stalinist Sandinista Front, or FSLN, the only alternative leadership force available.

When the Somoza regime fell at great human and social cost it was those disciplined FSLN cadre who took the reins of the state. They promised to rule democratically, but then delayed elections and set up new authoritarian institutions, using the credibility that their leading role in the insurrection had won them. It took a brave population, which knew the revolution belonged to them, too, a decade to reemerge and oust the FSLN peacefully and democratically. The armed contra force organized by Somoza era figures backed by the United States actually worked to undermine and delay that peaceful effort. The FSLN was able, skillfully, to use this U.S. proxy war as an excuse to crack down on peaceful domestic opponents. It should be recalled that such regimes are artful at exploiting foreign intervention against their domestic opponents.

In other words, the Syrian situation is most similar to what happened in Nicaragua before the FSLN took power. That period offers a lesson about the risks of not intervening, instead allowing a well-armed and disciplined minority to hijack a democratic revolution. In such a case, the fervent authoritarianism of the Islamic forces works in their favor. After the FSLN took power, on the other hand, there was sufficient democratic space even at the peak of the FSLN’s power for the population to turn against it peacefully. The Nicaraguan contras had only limited support among the population. This is the opposite of the situation in Syria where the opposition clearly has no choice but to defend itself and its movement with arms.

In these circumstances, the principles and conditions that accompany U.S. aid are crucial. Not the principles and conditions that we impose on the Syrians, rather those we impose on ourselves. We got it wrong not once but twice in Nicaragua. The lesson we should have learned is that the way in which we aid those fighting for freedom in other lands is critical to their success. We cannot let the fact of our aid be used propagandistically by either Assad or al Qaeda to undermine the Syrian democrats. That is what we did in Nicaragua and only the FSLN gained as a result.

The support we give should, therefore, be given openly not covertly and the process by which we do it should be transparent. Our engagement with the Syrian people should be open to monitoring on the ground by both Congress and representatives of our civil society, including labor, religious and community groups. It must be clear to all that our aid is aimed only at facilitating the success of a new Syrian democracy not at advancing a narrow self-interest. We must commit to long-term support because the country will require an extensive period to rebuild once peace is established.

The mistake we made in Nicaragua was to leave behind our own long-standing commitments to democracy, sustainable development and human rights. We ended up on the side, first, of a hated dictatorship, and, then, of death squads, as the Nicaraguan contra war spread throughout Central America. In Syria we have a chance to rewrite our past and help Syria write its future.