The Red Mass
Negotiations continue over how many debates (1) Bartlet and Ritchie will have. Senator Stackhouse finally drops his third-party candidacy (2), despite wanting to raise issues such as greater support for needle-exchange programs (3) that help reduce HIV transmission among injection-drug users (4). Amy stops working for Senator Stackhouse because she is too worried about the status of federal abortion rights (5). Bartlet gives an address at the Supreme Court's annual Red Mass (6) celebration; Charlie's new Little Brother asks whether that celebration is permitted under the First Amendment's Establishment Clause (7). A hostage/barricade situation (8) in Iowa is resolved successfully. Leo meets with an Israeli representative about its ongoing problems (9), including those with Kumar. Josh sends Donna to check out a self-help guru who has advised Ritchie.
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Presidential Debates (last updated September 26, 2002) (back to top)
Beginning with the 1988 election, debates between presidential candidates have been sponsored by the non-profit, bipartisan Commission on Presidential Debates, which aims to institutionalize such debates as a regular part of the election season. However, candidates have still argued every four years over the format and timing of such debates, and third-party candidates have arguably had even more difficulty participating.
Presidential debates are not required by law, and the most recent streak of continuous elections with debates only began in 1976. There were no debates in the 1952, 1956, 1964, 1968, or 1972 elections, in part because sitting presidents then felt they had little to gain by going head-to-head with their challengers; Vice-President Spiro Agnew once told reporters that debating was "poor tactics when you're running so far ahead."
Debate over Debates
Despite the Commission's efforts to set up debates more easily and regularly, each presidential election it has been involved with has seen some public disputes long before the candidates face off. Candidates and their campaigns have argued over how many debates, what days, what kind of format (one moderator, a panel of moderators, or a town-hall format), whether the candidates should stand or sit, and even how tall each candidate's rostrum should be (in 1988, Dukakis wanted the much taller George H. Bush to use a lower lectern; Bush agreed to use one lower than he normally would, but not as low as Dukakis wanted).
In recent years, the most vociferous fights over debates probably were those in 1992 and 2000, the first involving then-Arkansas Governor Bill Clinton and then-President George H. Bush, the second involving then-Vice President Al Gore and then-Texas Governor George W. Bush. (The 1996 debates raised a different kind of controversy as to whether Ross Perot was properly excluded from them.)
In 1992, the Commission proposed three televised debates in prime time, each lasting 90 minutes and each with a single moderator. Clinton accepted the proposal, but George H. Bush, who preferred the panel format, refused to accept the proposal and let the Commission's first scheduled debate pass without accepting. Clinton accused the sitting president of cowardice, and George H. Bush then countered with his own proposal for four debates on the four consecutive Sundays leading up to the election, with two before a panel and two before a single moderator.
Finally, the two campaigns negotiated independent of the Commission and finally reached agreement on three presidential debates and one vice-presidential debate within a tight nine-day period. One debate was before a panel of journalists, one before half-moderator, half-panel, and the third followed a "town hall" format; the one vice-presidential debate had a single moderator. All three debates included independent candidate Ross Perot.
Eight years later, George W. Bush followed his father's precedent and initially rejected the Commission's proposal for three 90-minute debates which would be broadcast on all major networks in prime-time. Instead, the Texas governor made a Sept. 3 proposal to have two of the three debates be only 60 minutes long and sponsored not by the Commission but by specific networks, namely, NBC and CNN. Al Gore criticized George W. Bush's proposal for trying to reduce the debates' prominence, saying that networks would not air a debate specifically hosted by another, and that viewers would watch more popular shows instead of the debates if non-debate programming was available on some major channels.
As in the 1992 situation, campaign officials from the Bush and Gore campaigns met to negotiate a resolution. But unlike 1992, the result this time was that Bush, who began receiving criticism from his own party for his handling of the debates, withdrew all his objections and accepted the Commission's schedule without any change.
Third-Party Candidates
Third-party candidates have often had difficulty getting the major-party candidates to debate them. President Jimmy Carter refused to debate Independent candidate John Anderson in the 1980 campaign, though Ronald Reagan did debate Anderson with some success. More recently, Ross Perot was invited by the major-party candidates to participate in the three presidential debates in 1992, but not to the Commission's 1996 debates.
Now that it does have some formal role in the process and does extend invitations to the debates, the Commission has tried formulating criteria for which presidential candidates should be invited to participate in its debates. There were at least 23 candidates in the 1996 election and at least 17 candidates in the 2000 election (though none but the major-party candidates, Ross Perot and Ralph Nader ever got more than 1 percent of the popular vote), which would make for unwieldy - and probably useless - debates if all were to participate.
For the 1996 election, the Commission used a combination of objective and subjective criteria such as evidence of national organization, national newsworthiness and competitiveness, and indicators of national public enthusiasm or concern in order to invite only those candidates who it deemed had a "realistic (i.e. more than theoretical) chance of being elected." It thus invited only Bill Clinton and Bob Dole, the two major-party candidates that year.
Perot (along with John Hagelin of the Natural Law Party) challenged the Commission's selection criteria and petitioned a federal judge to allow them to participate, arguing that the Federal Election Commission had wrongly delegated its authority to the bipartisan Commission. The judge rejected the third-party candidates' challenge as non-judicial; there was no legal right for any candidate to participate in the debates, the FEC had no authority over setting up the debates, and there was no need to hold up the debates or require Perot's participation since any harm he might suffer by not participating could be rectified by holding more debates later.
Neither Perot nor Hagelin ended up debating and neither ultimately had much success at the polls. Perot ultimately took third-place with 8.40 percent of the popular vote, and Hagelin won 0.12 percent of the vote, coming in seventh.
In any event, the Commission adopted new selection criteria for the 2000 election, this time looking to whether a candidate met the Constitution's eligibility requirements (see here), whether the candidate was on enough states' ballots to have a "mathematical" chance of winning the electoral college, and whether the candidate had at least 15 percent support according to an average of five national polls at the time of determination.
Although the Commission had dropped subjective criteria this time, some still challenged its criteria as unfair. Some noted that the Presidential Public Funding Program only requires a third-party presidential candidate to win five percent of the popular vote in order to receive some post-election reimbursement as well as some public funding for his party in the next election (which is what Ralph Nader of the Green Party was aiming for in the 2000 election, though he ultimately won only 2.74 percent of the popular vote).
On a separate but related issue, both Perot in 1996 and Nader in 2000 challenged the Federal Election Commission's regulations that permit the Commission on Presidential Debates to receive corporate contributions to help cover the costs of the debates. Perot did not long pursue the argument in 1996, but Nader pressed it through several courts, arguing that that the FEC's regulation improperly allowed corporate money to aid the major parties at the expense of minor parties and should be struck down. The First Circuit Court of Appeals noted in November 2000 that Nader's argument was not "unreasonable," but upheld the Federal Election Commission's regulation as a different, also reasonable choice that warranted deference.
For more on elections, go here. For more on third-party candidates, go here.
Sources: The Commission on Presidential Debates is on-line here. Stephen Bates, The Future of Presidential Debates (The Annenberg Washington Program in Communication Policy Studies of Northwestern University, 1993), is on-line here. The Federal Election Commission, on-line here, has information on all the presidential candidates in the 1996 and 2000 elections, and has information on the presidential public funding program here. Richard L. Berke, Bush shifts stand, saying he's ready to hold 4 debates, New York Times, September 30, 1992. Richard L. Berke, Bush and Clinton agree on debates; plan to ask Perot, New York Times, October 3, 1992. Peter Marks, Dropping all of his objections, Bush agrees to panel's debates, September 15, 2000. An appellate court decision regarding Perot's 1996 challenge is on-line here and one regarding Nader's 2000 challenge to the FEC regulations is on-line here.
Third-Party Candidates in Presidential and Non-Presidential Elections (last updated October 1, 2002) (back to top)
Third-party candidates have always had a difficult time winning definitive success on the presidential level due in part to a variety of structural and political factors, but have gained some ground in recent years in other kinds of elections. No third-presidential candidate has won any electoral votes since the 1960s, but third-party candidates have won a handful of governorships and other high posts in recent decades. As of early 2002, there were two governors, one Senator, and one member of the House of Representatives who were not affiliated with either the Democratic or Republican parties.
Presidential Elections and Obstacles to Third-Party Success
While most presidential campaigns revolve around the two leading parties' candidates, third-party candidates have been a mainstay of the election season and have sometimes taken on significance in setting the political agenda and even affecting the overall result. Third-party presidential candidates have won more than 5 percent of the popular vote in 13 elections, more than 20 percent in two elections, and some of the electoral votes actually needed to become president in eight elections.
Third parties and third-party candidates cover a wide spectrum; there were at least 13 candidates in the 1992 election, at least 23 candidates in 1996, and at least 17 candidates in the 2000 election, though only Ross Perot and Ralph Nader won more than 1 percent of the popular vote in any of these elections. Nevertheless, they have been grouped loosely by political scientist James Q. Wilson into four categories: (1) ideological parties such as the Socialist Labor Party on one end and the Libertarian Party on the other, (2) one-issue parties such as the still-going Prohibition Party and the anti-immigrant Know-Nothing Party of the 1850s, (3) economic protest parties such as the Populists at the beginning of the 20th century, and (4) factional parties that organize in protest of a major party's presidential candidate. Additionally, a study by Steven J. Rosenstone, Roy L. Behr, and Edward H. Lazarus concluded that prominent third-party presidential campaigns in the 19th century were primarily about an established political party that offered an alternative to the main two parties of the time, and prominent third-party presidential campaigns in the 20th century have been more centered on a particular individual candidate.
Some recent examples of prominent third-party candidates include :
- Ross Perot (Reform Party). A Texas billionaire with no experience in government, Perot captured public attention during the 1992 election for his focus on the budget deficit and his promises to bring his corporate successes to the White House. Perot participated in three presidential debates against Bill Clinton and George H. Bush, and won about 18 percent of the popular vote (studies have shown that Clinton probably would have still won had Perot not run, though Perot did cost Clinton a majority of the popular vote). Perot ran again in 1996 but with less success; he was not invited to participate in the presidential debates between Clinton and Bob Dole, and won about 8.4 percent of the vote.
- Ralph Nader (Green Party). A long-time consumer advocate, Nader first ran in 1996 with a nominal campaign but became a more active candidate in 2000, saying that he was both criticizing the Democratic Party as well as trying to build the Green Party as a viable and stable third-party. Nader won about 2 percent of the popular vote in 2000.
- Representative John Anderson of Illinois (National Unity Campaign). Originally a moderate Republican, Anderson dropped out of the 1980 Republican primary in favor of Ronald Reagan, but continued his campaign as an independent candidate. He participated in one presidential debate with Reagan (Carter refused to debate Anderson), and won about 6 percent of the popular vote.
- Governor George Wallace (American Independent Party). The last third-party candidate to win any electoral votes, Wallace split from the Democratic Party to run a campaign against the extension of civil rights and in favor of the Vietnam War. He had strong results in the South and won 13.5 percent of the popular vote and 48 electoral seats. Wallace subsequently returned to the Democratic Party.
Third-party candidates face several obstacles to success. Beyond voters' loyalty to a particular major party and voters' choosing simply to not vote rather than to seek out an alternative, third-party candidates face several structural obstacles, some of which are discussed below.
- Electoral college system. The electoral-college system of voting allocates electoral votes based on the states where one has taken a plurality of the popular vote, so this system disadvantages third-party candidates with a broad base of support and favors those candidates with strong regional support. Thus, Ross Perot could win 19 percent of the popular vote in 1992 without winning a single state or electoral vote, while States' Rights nominee Strom Thurmond took 7.3 percent of the electoral vote in 1948 while winning only 2.4 percent of the popular vote. For more on the electoral college, go here.
- Public financing of presidential campaigns. Under the Presidential Public Funding Program, a third-party candidate receives funds for his or her campaign only after proving some success in a presidential election. If a party's candidate wins five percent of the popular vote, that party will receive some post-election reimbursement and then will get some funding automatically in the next election, which is why Ralph Nader of the Green Party wanted to win at least five percent of the vote in 2000 and why Pat Buchanan sought the Reform Party's nomination that same year.
- Ballot access laws. Third-party candidates must establish organizations and efforts to get themselves and their parties on the ballots in most if not all of the states. Minnesota Senator Eugene McCarthy's 1976 independent campaign was noteworthy for successfully challenging many states' ballot access laws, even though he ultimately took less than 1 percent of the popular vote.
- Participation in events such as presidential debates. Since 1988, presidential debates have been organized by the Commission on Presidential Debates, a non-partisan organization that invites candidates to a series of debates based on pre-established criteria. The Commission's criteria has been criticized for setting overly high standards for third-party candidate participation; for example, Ross Perot was invited in 1992 at the request of the Clinton and Bush campaigns, but was not invited in 1996. For more on debates, go here.
- Fears of a deadlock. If no presidential candidate wins a plurality of the electoral vote, then such a presidential election would be decided by the House of Representatives in a special, complicated procedure by which all the newly-elected representatives vote as state delegations, and an absolute majority of state delegations is needed for election. Ross Perot himself raised the possibility of a deadlock to help explain why he briefly decided to drop out of the 1992 presidential election, though he did re-enter subsequently.
Non-Presidential Elections
Third-party candidates have had more definitive success in non-presidential elections, in part because candidates can sometimes win by taking a plurality of the popular vote, rather than having to win a majority of the electoral vote, and because they can focus on a smaller pool of potential voters. Still, there have no more than two third-party governors at the same time since the 1960s, no more than two third-party Senators since the 1940s, and no more than one or two third-party members of the House of Representatives since the 1940s.
As of 2002, before the November elections, the only third party elected officials at high federal or state positions were:
- Federal
- U.S. Senate (1 out of 100) : James Jeffords of Vermont (who switched from the Republican party to independent status in May 2001, throwing control of the Senate back to the Democratic Party)
- U.S. House of Representatives (1 out of 435) : Bernard Sanders of Vermont.
- State
- Governors (2 out of 50) : Jesse Ventura (Minnesota Reform Party, Minnesota) and Angus S. King Jr., (Independent, Maine)
- State Senates : only two out of 50 states had any third-party state senators. Maine had 1 out of 35 seats and Minnesota had 3 out of 67; none of Nevada's state senators are party-affiliated.
- State Houses : only five out of 49 states with a state house had any third-party members. Georgia had 1 out of 180 seats, Maine had 1 out of 151, New Hampshire had 2 out of 400, Vermont had 5 out of 150, and Virginia had 2 out of 100. Nebraska does not have a state house.
For more on partisan control of the houses of Congress, state governorships, and state legislatures, go here.
Sources: Information on the pre-election 2002 partisan composition of the U.S. Senate is available via the Senate on-line here, on the U.S. House of Representatives here, on state governors via the National Governors' Association here, and on state legislatures via the National Conference of State Legislatures here. Steven J. Rosenstone, Roy L. Behr, and Edward H. Lazarus, Third Parties in America (Princeton University Press, 1996, second edition). Selecting the President: from 1789 to 1996 (Congressional Quarterly Inc., 1997). Micah L. Sifry, Spoiling for a Fight: Third-Party Politics in America (Routledge, 2002). Some information on the 1996 and 2000 presidential elections is available via the Federal Election Commission, on-line here.
Needle-Exchange Programs (last updated October 10, 2002) (back to top)
As of 1998, there were at least 131 needle-exchange programs -- which are credited with reducing the spread of HIV among injection-drug users by providing sterile needles for used ones -- in 81 cities and 31 states, the District of Columbia, and Puerto Rico, according to a report by the Centers for Disease Control. Programs vary widely in terms of their scale, their methods of operation, their reception by local communities, and the local laws and requirements under which they operate.
At the federal level, Public Law 105-78 conditioned the use of federal funds for needle-exchange programs on findings by the Secretary of Health and Human Services that such programs reduce the transmission of HIV and do not encourage injection-drug use. In April 1998, then-Secretary Donna Shalala made such findings and said needle-exchange programs can be effective for those communities that choose to use them, but the restriction on federal funding was not lifted.
For more information about AIDS, go here. For more information about drugs, go here.
Sources: The Centers for Disease Control's report on the number and kind of needle-exchange programs, Update: Syringe Exchange Programs – United States, 1998 (May 18, 2001 / 50(19);384-8) is on-line here. A January 2002 CDC article provides information on such programs here. Information on federal funding for needle-exchange programs is from two press releases by the Department of Health and Human Services, one announcing Shalala's findings here and a more general one here. The North American Syringe Exchange Network is on-line here.
AIDS in the United States : Statistics (last updated: October 15, 2001) ()back to top)
In 1999, about 57 percent of the roughly 250,000 men who were living with AIDS were exposed to AIDS from having sex with other men, 25 percent from injection-drug use, and about 8 percent from both having sex with other men and from injection-drug use, according to a surveillance report by the Centers for Disease Control. Another 8 percent were exposed to AIDS from heterosexual contact.
As for the roughly 64,000 women living with AIDS in 1999, about 56 percent were exposed to AIDS from heterosexual contact, and about 41 percent from injection-drug use.
Other sources of exposure to AIDS include blood-related transfusions or components and hemophilia/coagulation disorders.
Sources: HIV/AIDS Surveillance Report, Volume 12, Number 2 (cases through December 2000) by the Centers for Disease Control (statistics for graph from Tables 26 and 27) (available via the CDC here).
Red Mass (last updated October 9, 2002) (back to top)
A religious tradition going back to 13th-century Europe, the Red Mass is a celebration of the Catholic Mass that is "designed to provide all attending members of the legal community … the opportunity to reflect on the God-given power and responsibility that are a part of their offices," according to the Will County Bar Association. The Red Mass gets its name from the red vestments, robes, or hoods that many participants wear.
The first Red Mass was celebrated in the United States in 1928 in New York City. The Red Mass is now typically celebrated on the first Monday in October, and it helps mark the opening of a new term of the United States Supreme Court.
Sources: The Will County Bar Association in Illinois has information on the Red Mass here. The St. Thomas More Society of South Florida also has information on the Red Mass here.
The Establishment Clause (updated August 15, 2002) (back to top)
Under the First Amendment's Establishment Clause ("Congress shall make no law respecting an establishment of religion"; see full text here), the government's ability to endorse or support religious activities is limited. How far the limitations go is subject to constitutional scrutiny, often under a test set out in the Supreme Court case of Lemon v. Kurtzman, 403 U.S. 602 (1971).
Under the Lemon test, a statute or governmental action must meet three criteria in order to be permissible under the Establishment Clause. The statute or action must (1) have a secular purpose, (2) its principal or primary effect must not advance nor inhibit religion, and (3) it must not foster "an excessive government entangling with religion." Variations of the Lemon test have arisen over time, such as the endorsement analysis used for determining the constitutionality of public religious displays.
That being said, the Establishment Clause does not prohibit purely religious activities or speech by individuals, it does not eliminate religion from schools and other public settings, and courts generally do not enforce the Establishment Clause in all instances where government and religion simply interact.
In the education setting, for example, students can pray or read their Bibles in school as long as they are not engaged in school activities or instruction. Teachers can still teach about religion and the Bible or the Koran, as long as they do not provide religious instruction or tell their students to believe a particular way. In fact, the Clinton administration released a set of guidelines in 1995 and a revised set in 1998 to help schools know the limits of the First Amendment and to set proper policies before any problems arose.
The Establishment Clause often comes up in several contexts, several of which are discussed below.
- Pledge of Allegiance (last updated August 15, 2002).
When first codified in 1942 by Congress, the Pledge of Allegiance originally was "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all." Twelve years later, in 1954, Congress added the words "under God" after the word "nation."
In June 2002, the Ninth Circuit Court of Appeals, the federal appellate court for most of the Western United States, held that Congress's 1954 action was unconstitutional in a 2-1 decision that was widely criticized by the public and that is being appealed. See Newdow v. U.S. Congress (9th Cir. June 26, 2002). One of the judges who issued the ruling then stayed the ruling pending a decision by another panel of the Ninth Circuit, which meant that the Pledge would maintain its 1954 wording until further notice.
"The statement that the United States is a nation 'under God' is an endorsement of religion. It is a profession of religious belief, namely, a belief in monotheism," Judge Alfred T. Goodwin wrote for the majority opinion. "To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and – since 1953 – monotheism. The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God."
Dissenting from the majority opinion, Circuit Judge Ferdinand Fernandez argued that the Pledge and similar references in public life to a monotheistic, Judeo-Christian God did not threaten the First Amendment. "Such phrases as 'In God We Trust," or "under God" have no tendency to establish a religion in this country or to suppress anyone's exercise, or non-exercise of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity."
The case was brought by Michael Newdow, an atheist who sued on behalf of his daughter, who attends a public elementary school in California. California law mandates "appropriate patriotic exercises" at the start of each day, and Newdow's daughter's school specifically required the giving of the Pledge of Allegiance.
While the Supreme Court has never directly addressed the constitutionality of the current Pledge of Allegiance, it has suggested in tangentially-related cases that it would allow such references to God to stand. Nonetheless, the Court has limited the effect of the Pledge in the past. In 1943, the Court ruled that students could not be required to recite the pledge in its original wording; at the time, West Virginia threatened students who failed to recite the pledge with expulsion and with juvenile-delinquency charges. See West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
- School prayer (last updated August 15, 2002)
Students can pray during free time at school, and schools can even allow official moments of silence in which students can do whatever they want, including pray. However, public schools cannot require their students to recite prayers, cannot encourage students to pray during such moments of silence, and cannot offer prayers at official school ceremonies such as graduation ceremonies.
The United States Supreme Court first dealt with the issue of school prayer in the 1962 case of Engel v. Vitale, 370 US 431 (1962). At that time, a school board in New York required students to recite daily a "non-denominational" prayer, which was prepared by the New York Board of Regents and which read: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country." The Supreme Court struck down this practice, calling it a religious activity that the government could not promote. Similarly, in 1963, the Supreme Court struck down a Pennsylvania law that required students to attend a reading of Bible verses each day and to recite the Lord's Prayer unless the students were exempted by their parents.
Schools can still allow their students to pray during their free time, and can even provide moments of silence in which students can choose to pray or meditate. An Alabama law set out a one-minute period of silence "for meditation," but then changed the law so that the period of silence would be "for meditation or voluntary prayer." The Supreme Court ruled that this change violated the Establishment Clause because the change had no secular purpose and must have been enacted "to convey a message of State endorsement and promotion of prayer." Wallace v. Jaffree, 472 US 38 (1985).
Finally, school officials cannot allow or organize prayer at graduation ceremonies without violating the Establishment Clause, according to the Supreme Court's 1992 ruling in the case of Lee v. Weisman, 505 US 577. Graduation ceremonies are virtually obligatory for all students, and so they cannot be compelled to attend and participate in a religious exercise.
- Religion in the public school curriculum (last updated August 15, 2002)
Public schools can teach about the Bible or the Koran or any religious text in schools, but they cannot provide religious instruction. They can teach about the history of Christianity or Islam, and they can teach about the role of religion in the United States or the world, and they can even teach the Ten Commandments as an early form of law; they simply cannot teach students to believe any particular way.
This has come up most often with the debate over creationism and evolution. The Supreme Court has twice struck down laws that promoted creationism or restricted the teaching of evolution, first in 1968, and again in 1987.
In 1968, the Supreme Court struck down Arkansas's version of the Tennessee anti-evolution law that resulted in the Scopes monkey trial of 1927, ruling that the state's right to set a public school curriculum did not include the right to bar "the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment." Epperson v. Arkansas, 393 U.S. 97. In 1987, the Court ruled that Louisiana's law requiring public elementary and secondary schools that taught evolution to also teach creationism violated the Lemon test and was unconstitutional because the law favored creationism and was motivated by religious purposes and because such young students were particularly susceptible to what they were taught. Edwards v Aguillard, 482 US 578.
For more on the Ten Commandments, go here. For more on evolution, go here.
Sources: Religious Expression in Public Schools (revised May 1998), a useful guideline for what public schools can do within the limits of the Establishment Clause, was published by the U.S. Department of Education and is on-line here. Cases are available on-line via Findlaw.com. Gerald Gunther and Kathleen M. Sullivan, Constitutional Law (13th edition, Foundation Press, 1997).
Abortion rights (last updated November 3, 2001) (back to top)
Since 1973, the United States Supreme Court has recognized a woman's constitutional right to have an abortion as a specific form of privacy right, limited only by the state's interest in protecting the life of the unborn child once it has reached a certain level of viability outside the womb. This right under the United States constitution was first established in the case of Roe v. Wade, 410 US 113 (1973), and re-affirmed by a 5-4 majority in the 1992 case of Planned Parenthood of Southeastern Pa. v Casey, 505 US 833 (1992).
The judges who upheld abortion rights were O'Connor, Kennedy, Souter, Stevens, and Blackmun, with some disagreement on specific state provisions such as a required waiting period. Four dissenting justices (Rehnquist, White, Scalia and Thomas) believed that Roe was wrongly decided (to them, a right to an abortion is not "fundamental" because it has no textual support in Constitution and because historically abortion was regulated and prohibited) and want to overturn it.
This narrow margin of victory - and the continuing political fight over abortion rights - has led some to fear for abortion rights' long-term survival. In his opinion in Planned Parenthood, Justice Blackmun noted that abortion rights are protected but that he "fear[s] for the darkness as four Justices anxiously await the single vote necessary to extinguish the [light]." Since 1992, one of those four Justices (White) and Blackmun himself have been replaced by Clinton nominees, so the pro-abortion rights contingent is presumably now 6-3. Presumably, two justices will need to be replaced before the core Roe rights are again up for possible overturning.
Even if the Supreme Court did overturn the central holding of Roe, women could still have rights to have abortions, though such rights would depend on state constitutions and state politics. Without a ruling such as Roe or Planned Parenthood establishing a federal right to have an abortion, each individual state would decide for itself first whether its own constitution provided protection for abortion rights and then whether it would allow abortion and what kind of regulations it would impose. A 2000 survey by the National Abortion Rights Action League reports that, if Roe were overturned, six states would preserve abortion rights, and 11 states would likely ban abortion in all or most circumstances with another 19 states at risk of doing the same. NARAL also reports that courts in 18 states have ruled that their state constitutions provide greater protection for reproductive choice than the federal Constitution.
A second prong for the abortion-rights controversy is government involvement in funding and providing abortions. Working around the central Roe holding, many states and local governments imposed restrictions and regulations on the process of getting an abortion in order to make it harder for women to do so. In the Planned Parenthood case, the Supreme Court held that such state-imposed regulations are permissible as long as they do not impose an "undue burden" on a woman's right to an abortion. Accordingly, Pennsylvania's informed consent requirement and waiting period were considered to not be undue burdens and were upheld as constitutional, though a spousal notification requirement was struck down in recognition of the reasons why a woman might not choose to tell the father of her unborn child.
Sources: Roe v. Wade, 410 US 113 (1973). Planned Parenthood of Southeastern Pa. v Casey, 505 US 833 (1992). Gerald Gunther and Kathleen M. Sullivan, Constitutional Law, 13th edition (Foundation Press 1997). Barbara Hinkson Craig and David M. O'Brien, Abortion and American Politics (Chatham House Publishers, 1993). The National Abortion Rights Action League's website is available on-line here. Its annual survey of state legislation, Who Decides?, is available here, fact sheets are available here, and its state-by-state guide to legislative bills is available here.
Hostage Situations (Waco, Ruby Ridge) (last updated October 9, 2002) (back to top)
Hostage situations on the domestic and international level have become a particular concern to federal, state, and local law-enforcement in recent decades, especially since the 1972 Olympic Games in Munich, where 11 Israeli athletes were killed. Hostage situations are generally organized into three broad categories: those committed by criminals who want primarily to escape, emotionally-disturbed people who want attention, and groups which are either looking for attention or have terrorist-like goals.
The two most famous and controversial hostage situations involving federal law-enforcement in recent years occurred in the early 1990s, first in Ruby Ridge, Idaho, and several months later near Waco, Texas. These incidents were particularly controversial for the ways in which federal officials modified existing procedures at Ruby Ridge and arguably worked at cross-purposes at Waco.
- Waco, Texas. The early 1993 standoff between federal law-enforcement officials and the Branch Davidian cult led by David Koresh (born Vernon Howell) lasted 51 days and ended when the Branch Davidians started a fire within their own compound and reportedly shot several of their own. At least 75 people were killed as a result of the fire and the shootings. Nine people survived the fire, and 35 Branch Davidians left the compound during the standoff and before the fire.
The incident began on February 28, 1993, when agents of the Bureau of Alcohol, Tobacco and Firearms came under heavy gunfire while attempting to arrest Vernon Howell, aka David Koresh. Four ATF agents were killed, and 16 injured during a shootout. Negotiators were dispatched, and the FBI became the lead agency by the next day.
Over the next 51 days, there were hundreds of federal and state law-enforcement personnel present at the Branch Davidian compound near Waco, Texas. According to one report, there were at least 719 law-enforcement personnel on-site at the Branch Davidian compound on any given day of the stand-off.
The various law-enforcement personnel, particularly the FBI's negotiators and its' tactical personnel, were sometimes at odds with each other on the approaches taken against the Davidians. According to an October 1993 report by the Deputy Attorney General on the Waco incident, "the negotiators felt that the negotiating and tactical components of the FBI's strategy were more often contradictory than complementary. The negotiators' goal was to establish a rapport with the Branch Davidians in order to win their trust. As part of this effort, negotiators emphasized to Branch Davidians the 'dignity' and fair treatment the group would receive upon its exit from the compound. By contrast, the negotiators felt that the efforts of the tactical personnel were directed towards intimidation and harassment. In the negotiators' judgment, those aggressive efforts undermined their own attempts to gain Koresh's trust as a prelude to a peaceful surrender."
Finally, the FBI decided to use non-lethal tear gas to drive the Branch Davidians out of the compound; Attorney General Janet Reno informed President Bill Clinton of her decision to order the use, and Clinton told her that it was her decision to make. The FBI informed the Davidians by telephone that it was inserting tear gas shortly before doing so around 6 a.m. on April 19, 1993. About three hours later, the Davidians started fires at several locations in the compound, and gunfire was heard within the compound.
In the wake of the Waco incident, several Bureau of Alcohol, Tobacco and Firearms officials were placed on administrative leave, new guidelines were implemented to increase oversight, and more FBI negotiators were made available. Moreover, the FBI's crisis response units were re-organized into a single entity, the Critical Incident Response Group, and tactical and negotiation components were placed on equal footing in the new structure.
- Ruby Ridge, Idaho. This 1992 incident began on August 21, when six Deputy United States Marshals went onto Randall Weaver's Idaho property to serve an arrest warrant based on outstanding weapons trafficking charges. A shootout erupted, resulting in the deaths of Deputy US Marshal William Degan and Randall Weaver's 14-year-old son Samuel. The FBI quickly sent out a response force to the area, including a Hostage Rescue Team which included snipers.
On August 22, FBI sniper Lon Horiuchi fatally shot Randall Weaver's wife Vicki and also wounded Randall Weaver himself on August 22. Horiuchi was acting under modified Rules of Engagement that authorized the fatal shooting of any armed adult if the shot could be taken without endangering a child, a change later deemed by several courts and reviews to be contrary to government policy and to the United States Constitution. The ordinary Rules of Engagement allow for deadly force only in self-defense or to protect another from grievous bodily harm.
Randall Weaver then withdrew to his home with other family members and his friend Kevin Harris for eight days, after which he surrendered.
In the wake of the Ruby Ridge incident, 12 FBI employees were disciplined, and one pled guilty to obstruction-of-justice charges related to his destruction of an FBI critique of the affair. Sniper Lon Horiuchi was charged with involuntary manslaughter by Idaho state prosecutors, but the case was dismissed. The federal government announced that it had settled the final civil suit stemming from the Ruby Ridge incident in 2000, when it paid Weaver friend Kevin Harris $380,000 to settle his claims that the United States government had violated his constitutional rights.
Sources: Information on the Branch Davidian incident was taken from the October 8, 1993 report to the Deputy Attorney General on the Events at Waco, Texas, on-line here, and from The Aftermath of Waco: Changes in Federal Law Enforcement, Senate Judiciary Committee hearings on October 31 and November 1, 1995. The FBI has information on the Critical Incident Response Group's negotiations group here. Information on the Ruby Ridge incident taken from an August 15, 1997 press release summarizing the a Department of Justice's review, on-line here; additional information from a civil case brought by Kevin Harris, Harris v. Roderick (on-line here), and from a criminal case brought against Lon Horiuchi, State of Idaho v. Horiuchi (on-line via Findlaw.com here).
Israel-Palestinians : Overview (last updated May 3, 2002) (back to top)
For more than 50 years, the state of Israel has existed in uneasy tension with its Arab neighbors and with the Palestinians who originally occupied some of the same territory. This tension has erupted into wars such as the Six Days War of 1967 and into violent uprisings (aka intifadas) within Israeli-controlled territories such as the one that began in September 2000 and continues into 2002.
Beyond religious differences and historical enmities, some pressing political and economic issues dividing Israel and the Palestinians include:
- Terrorist actions by groups such as Hamas (Islamic Resistance Movement) and the Islamic Jihad. Since December 2001, Israel has sharply criticized Yasir Arafat for not doing more to stop terrorist actions by such groups, charging that he lacks either the power or the will to do so and thus has become irrelevant to the peace process. As part of its biannual review of foreign terrorist organizations, the United States recognized in October 2001 six terrorist organizations that directly oppose Israel’s involvement in Palestine, as opposed to Islamic separatist organizations such as al-Qaeda.
- Control of occupied territories. Israel and the Palestinian Liberation Organization agreed in 1993 to begin a transition process in which Palestinians would gradually be given self-government over the West Bank and the Gaza Strip, two areas which Israel has occupied since its military successes in the Six Days War of 1967. This two-track process was broadened by the 1995 Israeli-Palestinian Interim Agreement. However, each side has accused the other of not living up to the conditions set forth in the agreements, and progress has stalled.
- Israeli settlements in the occupied territories. Israelis have created many settlements in the occupied territories, thus provoking Palestinians in such areas and complicating the resolution of who controls the land. As of August 2000, there were an estimated 231 settlements and civilian land-use sites in the West Bank, 42 in the Golan Heights, 25 in the Gaza Strip, and 29 in East Jerusalem. Israel says it has stopped creating new settlements, but is simply allowing currently-existing settlements to grow naturally. The United States has consistently opposed Israel’s settlement policy since the Carter administration, and has criticized growth patterns that seem to cover new territory while existing territory goes relatively unused.
- Control of Jerusalem. With both Israel and the Palestinians seeking to have Jerusalem as their capital, the status of this city has been constantly deferred from political negotiations. It was deliberately not resolved in the historic September 1995 Israeli-Palestinian Interim Agreement and was to be negotiated in future rounds.
- Poor economic conditions and massive unemployment in the occupied territories. Israel is a technologically advanced market economy, which had in 2000 an estimated gross domestic product of $110.2 billion, GDP per capita of $18,900, and a GDP growth rate of 5.9 percent, as reported in the CIA World Factbook. Israel’s unemployment rate was about 9 percent in 2000. By contrast, the West Bank and the Gaza Strip have relatively undeveloped economies with only some small industry. Both areas saw declining economies and rising unemployment from 1992 to 1996 as a result of Israeli border closure policies that responded to security incidents but also disrupted market relationships. Both areas then began to recover when Israel used such policies less frequently from 1997 to 2000. Recovery has at best stalled since the uprisings beginning in late 2000 and continuing into 2002. Estimates for the West Bank and the Gaza Strip in 2000 showed a GDP of $3.1 billion and $1.11 billion respectively, GDPs per capita each less than one-tenth that of Israel, and a combined unemployment rate of 40 percent.
The Peace Process
The 1990s started off with the promise of successful – though difficult – negotiations towards the peaceful transfer of authority over the West Bank and the Gaza Strip from Israel occupation to Palestinian self-government. In the wake of the Gulf War, Israel met with Palestinian and other Arab leaders in the Madrid Conference and began talks. After a round of talks in Oslo, Israel and the Palestinian Liberation Organization (PLO) signed a joint Declaration of Principles on September 13, 1993. That declaration called for a five-year transition period in which Israel would gradually withdraw its troops from major Palestinian centers and Palestinians would gradually govern themselves.
Several divisive issues, such as the status of Jerusalem and Jewish settlements in areas such as the West Bank and the Gaza strip, were officially set aside for a second stage of negotiations to begin no later than 1996.
Since 1993, negotiations have moved on two separate tracks, one towards Palestinian self-government as an interim step, and another towards a permanent adjustment. The interim track culminated with the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, which Israeli Prime Minister Yitzhak Rabin and PLO Chairman Yasser Arafat signed on September 28, 1995. This agreement was implemented in stages over the next few years.
However, other issues continued to go unresolved. First, the status of Jerusalem, which both Israel and the Palestinians want for their capital city, was left for future negotiations. Second, though Israel stopped creating entirely new settlements in the West Bank and the Gaza Strip, it continued to support the growth of existing settlements; this policy, which the United States has opposed continuously at least since the Carter administration, has been a particularly severe grievance to the Palestinians. On the other hand, Israel has complained that the Palestinians have been slow to implement their obligations under the Interim Agreement, including policing their own radicals.
Israel and the Palestinians began negotiating these issues in May 1996 and periodically since then, but without much success. One difficulty has been the frequent turnover in power between the Labor Party and the Likud Party. The Labor Party led by Yitzhak Rabin won national elections in 1992, Likud under Binyamin Netanyahu won in May 1996, and Labor took power again with Ehud Barak in 1999. Barak himself was replaced by Ariel Sharon in February 2001. Labor is generally more secular and favors giving land for peace to the Palestinians; Likud is more religious and conservative, and has greater concerns about security.
The Current Intifada Began in September 2000
In September 2000, a new wave of Israeli-Palestinian violence broke out with an intifada that seems to have set back the entire peace process. Events began with the September 28, 2000 visit of Israeli Parliament member Ariel Sharon (now the country’s prime minister) to the Haram al-Sharif/Temple Mount in Jerusalem. Palestinians protested the visit the next day, and Israeli police reacted with violence to disperse the demonstrations, killing four and injuring hundreds. Violence then continued and escalated through the end of 2000 and into 2001, resulting in hundreds of deaths on both sides, though mostly Palestinians. Amnesty International has reported at least 300 Palestinians were killed in the first three months of the intifada and that more than 570 Palestinians and more than 150 Israelis (including 150 Palestinian and 30 Israeli children) were killed during its first year.
The Sharm el-Sheikh Fact Finding Committee, organized by the United States and chaired by former U.S. Senator George Mitchell, later reported in April 2001 that there was no evidence that Sharon’s visit had been anything more than "an internal political act," or that the Palestinians had any deliberate plan to incite violence. On the other hand, the committee found, the violence resulted because "each side assumed the worst about the other and acted accordingly."
The Committee had plenty of criticism for both sides. It criticized Israel’s use of military force, noting that Israel needed to differentiate better between terrorism and protests, and noting that two-thirds of the alleged "attacks" by Palestinians against Israelis did not involve firearms or explosives. The Committee also criticizes Israel’s settlement policy for instigating Palestinian ire. At the same time, the Committee found that the PLO needed to make more efforts to enforce a complete stop of violence and prevent anti-Israeli terrorism.
Tensions and the death toll on both Israeli and Palestinian sides increased over the course of 2001, and the Israel government began taking steps directly against Yasir Arafat. In December 2001, the Israeli government publicly called Arafat an enemy and said he had become irrelevant due to his inability to stop the actions of groups such as Hamas. In March 2002, the Israeli government moved to contain Arafat within his Ramallah headquarters or to force his exile, and began extensive military operations in the occupied territories.
Some Historical Background and Context
Territory that has been dominated by different empires for centuries, the land now known as Israel was previously known as Palestine and was controlled by the Ottoman Empire from the 1600s to the 20th century. Britain then controlled the land as a mandate from 1917 to 1948, at which time the state of Israel was created out of a United Nations partition plan supported by the United States.
From 1948 into the 1970s, Israel fought several wars with its Arab neighbors. However, Israel’s decisive military victory in the 1967 war (known as the Six Days War) and its success in repelling a 1973 attack by Egypt and Syria -- as well as the 1979 Camp David accords that brought peace between Israel and Egypt – have moved the conflict more or less from the military arena to the political. Instead, direct conflict has moved largely to terrorist attacks and internal fighting between Israel and the Palestinians in the occupied territories. Israel began establishing or renewing diplomatic relations with Arab states after the 1993 agreement with the Palestinians, and signed a peace treaty with Jordan in 1994.
Israel has historically received strong support from the United States, beginning first with the United States’ support for the very creation of a Jewish state in 1948. It bought about $8 billion worth of military equipment from the United States from FY 1991 to 2000, though Saudi Arabia and Egypt both bought more equipment over the same period. For more on arms sales, go here.
For a timeline and for more on developments in Israel and the Palestinians, go here.
Sources Report of the Sharm el-Sheikh Fact Finding Committee, April 30, 2001. The United States Department of State maintains a section on the Middle East, available here. The United States Embassy in Israel has collected historical documents (available here) and an ongoing collection of developments (available here). Ahron Bergman and Jihan El-Tahri, Israel and the Arabs: an eyewitness account of war and peace in the Middle East (TV Books 2000). The State Department has a country background report on-line via its website here. Economic information on Israel, the West Bank and the Gaza Strip as well as Israeli settlement estimates come from the CIA World Factbook 2001, on-line here. Amnesty International’s report on the first year of the intifada is on-line here.
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