News & Commentary

The COVID-19 pandemic has swept the globe and upended normal life. In the four months since the first U.S. case was reported, more than 1.5 million people have been infected and 100,000 people have died in the United States. To mitigate risk, public health authorities tell us to get our groceries and prescriptions delivered, wave to grandma from the window, and generally avoid all unnecessary trips and close physical interactions outside the home.           Consistent with these guidelines, federal agencies have taken every opportunity to encourage telemedicine use and give clinicians the flexibility to forgo unnecessary in-person encounters in accordance with their clinical judgment. They have waived various rules requiring in-person visits, even for controlled substances like opioids.   But there is one striking exception: The U.S. Food and Drug Administration (FDA) continues to subject mifepristone, a safe, effective prescription medication used to end an early pregnancy or treat a miscarriage, to a uniquely burdensome restriction that is jeopardizing the health and lives of patients and clinicians, with particularly dire implications for low-income communities and communities of color.   The FDA requires that the mifepristone pill be dispensed only in a hospital, clinic, or medical office: Patients who have already been evaluated by a clinician through telemedicine or at a prior in-person visit are not allowed to fill their prescription by mail. Instead, they must travel to one of these clinical settings to pick up the pill — even if they are receiving no in-person medical services at that time, and even if they will swallow the medication later at home (as the FDA permits).   For months, leading medical authorities have implored the FDA to suspend this restriction and give clinicians who provide abortion and miscarriage care the flexibility they need to protect their patients during this crisis. But the administration is intransigent.   That’s why today we filed a lawsuit on behalf of a coalition of medical experts and reproductive health, rights, and justice advocates, led by the American College of Obstetricians and Gynecologists (ACOG), challenging the FDA rule that forces patients to take on unnecessary COVID-19 risks as a condition of receiving medication abortion and miscarriage care.   Of the more than 20,000 drugs regulated by the FDA, mifepristone is the only one that patients must obtain in a clinical setting, yet may self-administer unsupervised at home. It’s easy to see why no other drugs carry this restriction: There is no medical reason to dictate where a patient is standing when handed a pill they will put in their pocket to swallow later at home.   There is likewise no reason to impose this requirement on mifepristone, which has been FDA approved for 20 years and used by more than 4 million people. In the FDA’s words, mifepristone’s “efficacy and safety have become well established by both research and experience, and serious complications have proven to be extremely rare.” In fact, the FDA permits mifepristone to be sent to patients’ homes, in larger quantities and doses, when used for a purpose other than early pregnancy termination.    Yet the FDA has maintained this unnecessary restriction throughout the pandemic — despite CDC guidance specifically encouraging patients to fill prescriptions by mail-order delivery wherever possible, and despite a national medical consensus that mifepristone prescribers need the same flexibility as other clinicians to forgo medically unnecessary in-person visits, consistent with their best clinical judgment, during this crisis.   As is virtually always the case when it comes to restrictions on abortion, the harm here is not borne equally. Low-income people and people of color, who comprise a majority of people seeking abortions, bear the brunt of the FDA’s restrictions. At the best of times, arranging transportation and child care in order to travel to a health care facility to pick up a pill is difficult or impossible for many patients. Some must travel hundreds of miles — or even take a flight — causing severe delays and blocking some patients from accessing abortion care at all.   Now, during a historic unemployment crisis with many schools and day cares shuttered, the FDA is forcing patients to take on life-threatening — and entirely unnecessary — risks in order to access essential health services. This is particularly dangerous for communities of color, who, due to longstanding inequities in access to and quality of health care and other

For years, immigration enforcement agencies have been using invasive cell phone surveillance technology known as Stingrays in near-total secrecy. To find out more, the ACLU and New York Civil Liberties Union filed a lawsuit under the Freedom of Information Act, and now we’ve forced the agencies to turn over documents revealing new details about the agencies’ practices. Today, we are publishing more than a thousand pages of record we’ve received from U.S. Immigration and Customs Enforcement (ICE) about their purchase and use of Stingray technology. The documents reveal some significant gaps in public knowledge about the agency’s practices and raise significant privacy concerns.   Stingrays, also known as cell site simulators or IMSI catchers, track and locate cell phones. The devices mimic cell phone towers by sending out signals that trick cell phones in the area into transmitting their unique identifying information, ensnaring not only a target’s cell phone but also those of nearby bystanders. Using those transmissions, government agents can precisely locate phones, and can learn the identities of all phones in a particular area.   We initially submitted a FOIA request to ICE and Customs and Border Protection (CBP) in 2017, after the Detroit News reported on a case where ICE used a cell site simulator to locate and arrest an individual on immigration-related charges. That request was met with two years of near silence from the agencies, so last December

During a lull one afternoon when I was a high school student selling Black Panther Party newspapers on the streets of downtown Washington, D.C., in 1971, I sat down on the curb and opened the tabloid to the 10-point program, “What We Want; What We Believe.” The graphic assertion of “Point Number 3” particularly grabbed me:

Betty Riddle made sure she was first in line to vote in the Florida primary this year. At age 62, it was her first time voting. “It was one of the greatest moments of my life,” she told the ACLU. Her family made her a T-shirt just for the occasion, which read first in line, first time voting.

Even before the COVID-19 pandemic, Immigration and Customs Enforcement’s (ICE) detention system was marked by its filed over 50 cases in the last two months to compel ICE to release people from immigration detention facilities, resulting in the release of more than 400 detainees to date. But without further action by ICE, the situation is certain to grow even worse. In the last six weeks alone, at least five people — including two detainees and three officers — have died after contracting COVID-19. Unless immediate steps are taken to release people to practice social distancing in their own homes, we will see numbers of confirmed cases and deaths grow rapidly.   In the face of this increasingly deadly crisis, a response to our FOIA request is critical. ICE has already failed to provide timely, complete, and accurate information to the public about its response to COVID-19 in detention centers — even in sworn statements to federal courts. In the course of our litigation against ICE, we’ve unfortunately found that the government’s accounts of what is happening in detention cannot always be trusted. For example, in a case that the ACLU brought with the National Immigration Project of the National Lawyers Guild, the Capital Area Immigrants’ Rights Coalition, and the ACLU of Maryland, a federal district court judge noted that ICE’s Deputy Assistant Director for Healthcare Compliance Jennifer Moon had sworn in a declaration under penalty of perjury that the government had tested all detainees in Maryland detention facilities with COVID-19 symptoms. After a review of ICE’s own records, the court concluded that “this statement, which the court relied upon in deciding [a prior] motion, proved to be demonstrably false.” Indeed, the court concluded that “Respondents’ withholding of this information and failure to correct the record on this point … raises significant doubt whether the [detention center] will reveal suspected cases when they arise as to facilitate proper testing and responsive measures to protect the detainee population, or whether it will conceal suspected cases in the future and take no action, at substantial risk to the detainee population.” The court’s concern for ICE’s lack of COVID-19 testing is well-placed: Detainees have reported that people who are critically ill with COVID-19 symptoms have been denied testing and medical attention by detention officials. In another case brought by the ACLU of Ohio, a federal judge similarly called into question the accuracy of ICE’s reported COVID-19 screening as the agency sought to downplay the threat of COVID-19 in the Morrow County Jail. “ICE has provided the Court with 40 snapshots of temperature measurements …  Not only do none of these temperature readings indicate a fever, none was higher than 98.1 degrees. Eight were below 96 degrees, including one below 95 degrees, which is the clinical benchmark for hypothermia and requires immediate medical attention,” the court noted. “Respondents have no explanation for these low, and seemingly inaccurate, temperature readings, but they might be attributable to ICE’s usage of thermometers that expired in 2016,” the court concluded. ICE’s untimely and incomplete information also extends to its public website about COVID-19, which includes a section on confirmed cases of the virus in immigration detention. Daily analysis of ICE’s information reveals several reasons for deep concern. Although ICE has reported the number of people who have tested positive for COVID-19 at specific facilities, it has not provided information as to how many people at each facility have been tested — critical information to understand how widespread the virus is. It also appears that there may be serious irregularities with ICE’s data. For example, ICE has posted data where the additional number of confirmed cases of COVID-19 in detention is greater than the additional number of people tested — a mathematical impossibility.   ICE’s information about the number of COVID-19 cases among detention staff and employees similarly paints a misleading picture. Although the government publicly reports the number of ICE employees who have tested positive, this does not include what ICE calls “third party contractors.” This approach likely excludes a large majority of detention officials in close contact with immigrants, because

With one glaring exception, all persons born in the United States or its territories are U.S. citizens. The exception are persons born in American Samoa — a U.S. territory since 1900 — who hold an obscure and discriminatory status as “non-citizen nationals.” In December, a Utah federal court rightly held that because American Samoa is a U.S. territory and part of the United States, the Constitution’s Citizenship Clause applies to persons born there just as it does to those born in the 50 states.     We recently filed an amicus brief supporting this ruling. Appearing before the 10th Circuit, we argue that American Samoans are constitutionally entitled to U.S. citizenship and should enjoy all of the rights and protections that citizenship entails. The case revolves around John Fitisemanu, who has lived in Utah for over two decades, but is ineligible to vote there because he was born in American Samoa. John is a husband, a father of three, and a health care worker. As a taxpaying Utah resident, John wished to work for the government, but kept hitting walls because of his status. John and his co-plaintiffs — other Utah residents born in American Samoa — filed the lawsuit to secure their right to citizenship and their right to vote in the November 2020 general election.   The intermediate “non-citizen national” status has denied thousands the right to vote in most elections held in the 50 states and the District of Columbia. Among members of our nation, American Samoans truly stand alone: Persons born in other U.S. territories (for example, Puerto Rico) are citizens at birth and can vote in U.S., state, and local elections upon moving to one of the 50 states. And since American Samoans owe permanent allegiance to our country and were born in a territory under exclusive U.S. control for 120 years, it is difficult to see why laws that limit voting to citizens should automatically disenfranchise American Samoans.   Still, voting isn’t the only area where American Samoans are excluded from the core tenets of citizenship: Even if they reside in one of the 50 states, they may be denied the opportunity to run for office and represent their communities. In a recent example, Sai Timoteo — an American Samoan who ran in 2018 as a Hawaii state representative for the Republican Party — ended her run when she was disqualified by decades-old policies barring American Samoans from holding public office. These policies leave American Samoans on the outside looking in on our nation’s most revered democratic traditions.   The exclusion of American Samoans from these traditions, of course, means they aren’t represented in local, state, or federal government. But there is more: Persons born in American Samoa are denied the right to serve on juries, do not enjoy the same rights as U.S. citizens to petition for immigrant status on behalf of family members, and have to traverse a burdensome naturalization process if they wish to become U.S. citizens — again, notwithstanding the fact that they are born “Americans.”    Moreover, even the more mundane harms of “non-citizen national” status are onerous. For example, federal, state, and local laws often require U.S. citizenship as a condition for public employment. That requirement excludes American Samoans from employment as police officers, firefighters, paramedics, or public school teachers. They can’t be court reporters in Utah, optometrists in New Mexico, or funeral home directors in Oklahoma, to name a few of the professions into which they’re barred entry. Even getting a driver’s license can be an issue. These laws and policies gravely limit everyday life, liberties, and opportunities for American Samoans living in the mainland U.S. — a reality for over 100,000 people.   As we note in our brief, American Samoans also serve in the U.S. military at remarkably high rates. In 2007, for example, American Samoans died in Iraq and Afghanistan at a higher rate per capita than troops from anywhere else in the U.S. or its territories. “Those wartime losses [were] strikingly tangible on the island: In keeping with local custom, most [returned] to be buried in the front yard of their family home, their graves flanked by the flags of both the United States and American Samoa,” wrote the Chicago Tribune. Yet unnaturalized American Samoan servicemembers and veterans cannot vote for their commander in chief, serve in specialized services like the Special Forces, or rise to be officers in the military that they serve.   American Samoa has been part of the national fabric for more than a century. We should no longer deny persons born there the benefits and rights to which all persons born on U.S. soil are entitled. Doing so only perpetuates systems that foster stigma and division in our communities. The 10th Circuit can and must affirm American Samoans’ right to citizenship. 

This spring, something extraordinary and worthy of imitation occurred on Georgetown University’s campus in Washington, D.C. On April 11, two-thirds of the undergraduate student body who took part in a referendum voted “yes” to create a reparations fund for the descendants of 272 slaves the university sold in 1838 to save the university from bankruptcy. When the Maryland Jesuits sold these human beings into further bondage on brutal Louisiana cotton plantations nearly two centuries ago, they received $115,000 in return, or about $3.3 million today. Fast forward to the present, and Georgetown’s endowment is valued at nearly $1.8 billion — a premier American institution of higher learning built with blood money. The effort to make amends for the university’s trafficking in human misery and subjugation was the work of the GU272 Foundation. The organization, founded by the descendants of that wicked sale, asked Georgetown students to increase their university tuition fees by $27.20 each semester to honor those whose lives financed the college’s continued existence. As Shepard Thomas, a member of a student group who advocated for the referendum and a descendant of some of the original 272 slaves sold in 1838, told The New York Times, “The school wouldn’t be here without them.” Georgetown’s students have shown colleges and universities, particularly those that also profited from slavery, one way to right the wrongs of the nation’s original sin. In the name of reparatory justice, private and public universities should underwrite the establishment of reparations funds — similar to the Georgetown initiative — to ensure that students of African descent do not leave these institutions in debt. Members of the National African American Reparations Commission (NAARC), such as myself, want to work with student leaders in petitioning the administrators at universities whose establishment was made possible by wealth generated from slavery, slave trading, and the unpaid labor of people of African descent to make restitution to African Americans in the name of racial healing. There have been presidential commissions and task forces at Brown, Harvard, Columbia, and other universities that have investigated and reported on the wealth these institutions accrued due to their direct or indirect participation in slavery and slave trading. As a result of these inquiries, there have been efforts to change the names of buildings named after slave owners and traders, such as Yale’s Calhoun College, and other symbolic actions. However, given the persistence of extreme racial disparities in wealth between Black and white college graduates, there is need to address the income gap through the application of reparatory justice, which calls for repair, remediation, and restitution to those who historically and currently have been unjustly damaged and targeted for exploitation.

For nearly three decades, my former colleague Rep. John Conyers of Michigan would introduce H.R. 40, legislation seeking to establish a commission to study and develop reparation proposals. Though many thought it a lost cause, he believed that a day would come when our nation would need to account for the brutal mistreatment of African Americans during chattel slavery, Jim Crow segregation, and the enduring structural racism endemic to our society. With the rise and normalization of white supremacist expression during the Trump administration, the discussion of H.R. 40 and the concept of restorative justice have gained more urgency, garnering the attention of mainstream commentators and illustrating the need for a national reckoning. Slavery is America’s original sin, and this country has yet to atone for the atrocities visited upon generations of enslaved Africans and their descendants. Moreover, the mythology built around the Civil War has obscured our discussions of the impact of chattel slavery and made it difficult to have a national dialogue on how to fully account for its place in American history and public policy. H.R. 40 is intended to create the framework for a national discussion on the enduring impact of slavery and its complex legacy to begin that necessary process of atonement. The designation of this legislation as H.R. 40 is intended to memorialize the promise made by Gen. William T. Sherman, in his 1865 Special Field Order No. 15, to redistribute 400,000 acres of formerly Confederate-owned coastal land in South Carolina and Florida, subdivided into 40-acre plots. In addition to the more well-known land redistribution, the order also established autonomous governance for the region and provided for protection by military authorities of the settlements. Though Southern sympathizer and former slaveholder President Andrew Johnson would later overturn the order, this plan represented the first systematic form of freedmen reparations.  With the withdrawal of Union troops from the South in 1877, the promise of Reconstruction proved short-lived, and over the next century and a half, the Black Codes would morph into Jim Crow segregation and federal redlining and the war on drugs and mass incarceration and racism in policing and underfunded schools — injuries not confined solely to the South. These historical injustices connect through a web of government policies that have ensured that the majority of African Americans have had to, in the words of President Obama, “work twice as hard as anyone else if you want to get by.” Black America’s unemployment rate is more than twice that of white America’s. Black families have just one-sixteenth of the wealth of white families. Nearly one million Black people — mostly young men — are incarcerated across the country. Though remote in time from the period of enslavement, these racial disparities in access to education, health care, housing, insurance, employment, and other social goods are directly attributable to the damaging legacy of slavery and racial discrimination. Since its introduction, H.R. 40 has spurred some governmental acknowledgment of the crime of slavery, but most often the response has taken the form of an apology. Even the well-intentioned commitments to examine the historical and modern-day implications of slavery by the Clinton administration, however, fell short of the mark and failed to inspire substantive public discourse. For many, it was not until The Atlantic published Ta-Nehisi Coates’ “The Case for Reparations” that the mainstream public began to reckon with, or even consider, the concept of reparations.  Though the federal government has been slow to engage on the issue of reparations, individuals, corporations, and other public institutions have engaged the discussion out of both necessity and conscience. In 1994, a group of California plaintiffs brought suit against the federal government, and by 2002, nine lawsuits were filed around the country by the Restitution Study Group. Though litigation has yielded only mixed success in court, a serious foundation was laid for alternative forms of restitution. For example, in 2005, J.P. Morgan & Company tried to make amends for its role in the slave trade with an apology and a $5 million, five-year scholarship fund for Black undergraduates in Louisiana. In 2008, the Episcopal Church apologized for perpetuating American slavery through its interpretation of the Bible and certain dioceses have implemented restitution programs. In 2003, Brown University created the Committee on Slavery and Justice to assess the university’s role in slavery and determine a response. Similarly, in 2016, Georgetown University apologized for its historical links to slavery and said it would give an admissions edge to descendants of slaves whose sale in the 19th century helped pay off the school’s debts. These are only a few examples of how private institutions have begun reckoning with their past records. I expect that a growing number of institutions will be forced to examine their histories of discrimination, if for no other reason than increasing public scrutiny will force their history to light.    Since my reintroduction of H.R. 40 at the beginning of this Congress, both the legislation and concept of reparations have become the focus of national debate. For many, it is apparent that the success of the Obama administration has unleashed a backlash of racism and intolerance that is an echo of America’s dark past that has yet to be exorcised from the national consciousness. Commentators have turned to H.R. 40 as a response to formally begin the process of analyzing, confronting, and atoning for these dark chapters of American history. Even conservative voices, like that of New York Times columnist David Brooks, are starting to give the reparations cause the hearing it deserves, observing that: “Reparations are a drastic policy and hard to execute, but the very act of talking and designing them heals a wound and opens a new story.” Similarly, a majority of the Democratic presidential contenders have turned to H.R 40 as a tool for reconciliation, with 17 cosponsoring or claiming they would sign the bill into law if elected.   Though critics have argued that the idea of reparations is unworkable politically or financially, their focus on money misses the point of the H.R. 40 commission’s mandate. The goal of these historical investigations is to bring American society to a new reckoning with how our past affects the current conditions of African Americans and to make America a better place by helping the truly disadvantaged. Consequently, the reparations movement does not focus on payments to individuals, but to remedies that can be created in as many forms necessary to equitably address the many kinds of injuries sustained from chattel slavery and its continuing vestiges. To merely focus on finance is an empty gesture and betrays a lack of understanding of the depth of the unaddressed moral issues that continue to haunt this nation.  While it might be convenient to assume that we can address the current divisive racial and political climate in our nation through race-neutral means, experience shows that we have not escaped our history. Though the civil rights movement challenged many of the most racist practices and structures that subjugated the African-American community, it was not followed by a commitment to truth and reconciliation. For that reason, the legacy of racial inequality has persisted and left the nation vulnerable to a range of problems that continue to yield division, racial disparities, and injustice.  By passing H.R. 40, Congress can start a movement toward the national reckoning we need to bridge racial divides. Reparations are ultimately about respect and reconciliation — and the hope that one day, all Americans can walk together toward a more just future.

We are two months away from the 400th anniversary of the first enslaved people arriving in what would become the United States of America. It is time to renew the public discussion about reparations to descendants of Africans who were enslaved as our country was forming and growing rich.  First as colonies and then as a nation, America has existed longer with slavery (1619-1865: 246 years) than without it (1865-2019: 154 years). And the reality of the institution of enslaving people is not the “good food and a decent place to live” narrative of Bill O’Reilly on Fox News and others who minimize the horror of the practice. The first 100 of the 154 years without slavery were characterized by socially mandated and legally enforced white supremacy. There were 4,075 lynchings between 1877 and 1950 (an average of a little over one lynching every week). If the 1965 Civil Rights Act, passed the year after three civil rights workers were killed in Philadelphia, Mississippi, “leveled the playing field” in America, descendants of enslaved Africans have lived “free” in America for about 54 years. Of course, that 54 years has been characterized by the Republican-inspired war on drugs, the Democratic 1994 crime bill, and a report from the Economic Policy Institute last year that identified “no progress” since 1968 in closing gaps between whites and Blacks in home ownership, employment, or incarceration. In this world, freedom does start to sound like “nothing left to lose.”