An undercover investigation reveals the deception of “humane”-certified farms

Regulators had a chance to fix the meat industry’s false advertising problem. They failed.

by Kenny Torrella

VOX

Nov 14, 2024,


A flock of large white broiler chickens, approximately 10 weeks old, are ready to be processed. 

Monica Fecke/Moment via Getty Images


An overwhelming majority of Americans say they’re concerned about the treatment of animals raised for meat, and many believe they can help by simply selecting from one of the many brands that advertise their chicken or pork as “humane.” But such marketing claims have long borne little resemblance to the ugly reality of raising animals for meat.


Nearly all farmed animals in the US live on mega factory farms, where they’re mutilated without pain relief and fattened up in dark, overcrowded warehouses before being shipped off to the slaughterhouse. Only a tiny sliver of livestock are actually reared on the small, higher-welfare farms that many companies conjure on their packaging with quaint red barns and green rolling hills — and even those operations can be rife with animal suffering.

This summer, the US Department of Agriculture (USDA) had an opportunity to fix the false advertising problem pervasive in the meat aisle when it published updated guidelines that companies must follow when making animal welfare claims on their labels. Instead, its new guidance barely changed anything.

The updated rules “remain insufficient to combat misleading label claims used to market meat and poultry products,” as the nonprofit Animal Welfare Institute put it, allowing companies “to essentially make up their own definitions with no repercussions.” (The one improvement, the organization noted, was a clearer definition of the term “pasture raised,” though that label remains poorly enforced and does not guarantee animals were raised humanely.)

Here’s how the USDA’s guidelines work: If a meat company wants to make an animal welfare or environment-related claim on its packaging, it must fill out a form with an illustration of its label and an explanation as to how the animals are raised to justify the claim; how the company will ensure the claim is valid from birth to slaughter to sale; and whether or not an independent, third-party organization certified the claim, which is optional. The USDA never conducts surprise audits, or any audits at all, to verify the company is telling the truth. It is, in essence, an honor system.

The USDA also has an incredibly low, and often nonsensical, bar for what passes as humane treatment.


The agency states, for example, that a chicken company can use the term “humanely raised” if it feeds its birds an all-vegetarian diet, which has virtually no bearing on their welfare (chickens are omnivores).


Similarly, the agency says pork can be labeled “humanely raised” if the company provides its pigs with “proper shelter and rest areas.” By that definition, standard factory farms — which produce practically all US pork — are humane because they provide ample shelter in the form of vast, crowded warehouses where the animals have nothing to do but rest on the same concrete flooring where they defecate and urinate.

Chickens raised for meat at an operation in Maryland. Edwin Remsberg/The Image Bank via Getty Images

Pigs at a breeding farm. Chayakorn Lotongkum/iStock via Getty Images


“I think that a lot of this is out of touch with what consumers are really thinking these claims mean,” P. Renée Wicklund, co-founder of Richman Law & Policy — a law firm that takes meat, dairy, and egg companies to court over false claims — told me.


Over the last decade, the Animal Welfare Institute has requested from the USDA the applications that meat companies submitted for 97 animal welfare claims. For the overwhelming majority of them, there were either no records at all or the justifications for the labels had little to no relevance to animal welfare.


The USDA declined an interview request for this story and didn’t directly respond to numerous detailed questions. Instead, it sent a statement that read in part: “USDA continues to deliver on its commitment to fairness and choice for both farmers and consumers, and that means supporting transparency and high-quality standards.”


To be fair to the agency, it doesn’t have the authority to conduct on-farm audits, which would require an act of Congress. But it does have authority to define animal welfare claims — an authority it rarely exercises. Instead, it allows companies to define animal welfare claims themselves.


The USDA also added that it “strongly encourages” companies to validate animal welfare claims using third-party certifiers — private organizations that audit conditions on farms and license the use of their own humane labels. But a recent undercover investigation into one of the nation’s biggest “humane-certified” poultry companies shows how low third-party certification standards can be.

Chickens kicked and run over with forklifts: Inside a “humane-certified” poultry farm


Foster Farms, the 11th largest chicken company in the US, advertises meat from animals raised with supposedly “better care.” On its packaging, chickens are shown roaming free on pasture, even though the company’s conventionally raised birds will never step foot onto grass. On its website, Foster Farms says its farming is “safe, sustainable, and humane” and that its chickens are “raised on local West Coast farms” with “strenuous, high standards.”


The company also promotes its chicken as “cage-free” with “no added hormones or steroids ever.” But touting these aspects is misleading because chickens raised for meat in the US are not kept in cages — only those raised for eggs are — and it’s illegal to feed chickens hormones or steroids.


“They’re feel-good words, but they don’t have any real meaning,” veterinarian Gail Hansen told Vox.


This summer, an undercover investigator with the animal rights group Animal Outlook worked for a month on the company’s catch crew, a job that entails grabbing chickens on farms, stuffing them into crates, and loading them onto trucks bound for the slaughterhouse.


Over the course of more than a dozen shifts at multiple Foster Farms facilities, the investigator — who requested anonymity due to the covert nature of undercover investigations — documented workers slamming birds into crates, kicking and hitting chickens, and numerous instances of forklift drivers running over birds.


The investigator recalled making eye contact with a bird shortly after they were run over by a forklift. “They were being crushed and everything was being pushed forward, and they had their beak open, and they had this look on their face like they knew that they were dying. And then I watched them flap and struggle for a moment before passing,” the investigator told me.

“From a veterinary perspective, some of the things are just horrific,” Hansen said.


The investigator chalked up most of the cruelty to the chaotic, fast-paced work environment imposed by supervisors during long, grueling shifts.


After Animal Outlook released its investigation last month, Foster Farms fired several employees and reported them to county law enforcement. In a statement to a chicken industry news site, the company said it would also hire for more roles focused on animal welfare, retrain employees on animal welfare, and conduct more audits. Foster Farms did not respond to Vox’s multiple requests for comment.


Cheryl Leahy, who was executive director of Animal Outlook when the investigation was released but has since left the organization, said the company’s problems go much deeper than just a few employees.

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Cruelty is “woven into the culture,” Leahy said. “It is a feature, not a bug. It is a business practice. There is a decision made to go with volume and speed” over animal welfare.


In recent years, the USDA has cited Foster Farms for 18 incidents of violating federal animal welfare laws. Numerous other investigations into Foster Farms facilities have found cruel conditions and practices that, to be fair to the company, have also been documented across the US poultry industry.


Foster Farms’ announced reforms in response to Animal Outlook’s latest investigation are unlikely to do much to improve overall conditions, Leahy said. It has already taken similar actions — penalizing workers and increasing training — in the wake of previous investigations. More importantly, the company’s animal welfare standards are already at rock bottom, in line with the rest of the chicken industry.


But you wouldn’t know that from its marketing or its “American Humane” certification.

How misleading marketing — enabled by the USDA — tricks consumers


For years, Foster Farms has bolstered its humane image through a certification from the nonprofit American Humane — the kind of third-party organization that the USDA “strongly encourages” meat companies making humane claims to work with. As of the late 2010s, the company paid American Humane $375,000 annually for its certification, and a lawsuit claimed that American Humane would give Foster Farms seven to 14 days’ notice of an audit, allowing them to prepare for the visits.


Animal advocacy groups like Animal Outlook argue that American Humane’s standards largely mirror that of the typical chicken factory farm, not the higher-welfare conditions a consumer would reasonably expect.


Hansen, the veterinarian, echoed that sentiment: “The daylight between them is pretty narrow.”



American Humane’s “standards are not meant to actually bring these companies up to a level of palatability for the public,” Leahy said. “What they’re trying to do is stop the criticism.”


A former American Humane executive is now an owner and partner of a PR firm that defends factory farm interests and executive director of a related pro-factory farming organization. American Humane did not respond to multiple requests for comment.


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A 2015 class action lawsuit, alleging that Foster Farms misleads consumers with its American Humane Certified label, demonstrates how the USDA’s low standards enable such deception: In a 2018 decision, a three-judge panel rejected an appeal in part because the USDA had already approved the label.


“The Foster Farms of the world can say, ‘Look, this was approved by a government agency,’”said Wicklund. (Wicklund’s law firm, Richman Law & Policy, has represented and co-counseled with Animal Outlook in meat labeling lawsuits; earlier this year, it filed a legal complaint against Foster Farms over its animal welfare claims, which is ongoing.)


The recently released Animal Outlook investigation reported that Foster Farms employees — and, according to the undercover investigator, its supervisors, too — did violate some of American Humane’s poultry handling standards, which are laid out in a dense 115-page document. However, Foster Farms remains certified by American Humane — when companies are in violation of the organization’s standards, there are seemingly no penalties. They have to fill out a form explaining how they’ll meet full compliance in the future and alert American Humane when that’s been done. Companies can still obtain certification even if they don’t fully pass their annual audit. (And numerous investigations into poultry companies have found that rough handling appears to be the industry norm, not the exception).


While some animal certification programs do set standards above the industry norm, what makes especially weak third-party certifications like American Humane’s so fundamentally inadequate — and deceptive — is that they permit the worst systemic abuses of poultry farming: cruel breeding practices, overcrowding, and especially inhumane slaughter methods.


Virtually all chickens raised for meat in the US have been bred to grow so big so fast that they’re in constant pain. Many have difficulty walking or even standing and are more likely to suffer from leg deformities, heart attacks, and other health issues when compared to heritage breeds that grow at a normal pace. Animal Outlook’s investigator alleged that many of the birds in the Foster Farms operations couldn’t walk and that some had broken legs. American Humane’s standards allow for these rapid-growth chickens, which animal rights activists call “Frankenchickens.”

The group’s standards also allow for overcrowding, giving birds a little more space than the industry standard but what still amounts to almost 20 percent less space than what animal advocacy groups argue should be the bare minimum. American Humane allows for the standard chicken slaughter process: shackling chickens upside down, dunking them in a bath of electrified water to stun them unconscious, slitting their throats, and then placing them in a scalding vat to loosen their feathers.


Despite all that, the resulting meat can still be advertised as humane, sustainable, and produced from healthy birds.


The empty claims many meat companies make on their labels and in their advertising stem from forces bigger than the USDA and third-party certifiers. Currently, chickens and other poultry birds have zero federal legal protections while on the farm or in the slaughterhouse, and third-party certification programs make an exceptionally weak substitute for this legal gap. If we wanted truly “humanely raised” chicken, we’d have to fundamentally change how chickens are farmed, which would require significant anti-cruelty legislation from Congress. That would substantially raise the price of chicken, making it more of a delicacy than a staple.


But the USDA, the poultry giants, and the dubious third-party certification schemes would like us to believe otherwise — that wholesome marketing and hollow honor systems can fix the horrific reality of what it is to be a farmed animal in the US.

Kenny Torrella is a senior reporter for Vox’s Future Perfect section, with a focus on animal welfare and the future of meat.

Trump Taps Fossil Fuel Ally to Head EPA, Push Anti-Environment Agenda

Lee Zeldin has a history of opposing critical environmental protections and clean energy job investments.

By Amy Goodman , 

DemocracyNow!

November 13, 2024


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Environmental defenders are raising alarm over Donald Trump’s pick to lead the Environmental Protection Agency, former New York Congressmember Lee Zeldin, who has a history of opposing critical environmental protections and clean energy job investments. Zeldin’s nomination comes as Trump is reportedly discussing moving the EPA headquarters outside of Washington, D.C., which could lead to an exodus of staff and expertise from the agency. “I really don’t think this is about government efficiency. I think this is about terrorizing the career staff,” says Judith Enck, who served as a regional administrator of the EPA in the Obama administration.

TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, “War, Peace and the Presidency.” I’m Amy Goodman.

As Donald Trump quickly moves to name his Cabinet, we turn now to look at his pick to head the Environmental Protection Agency, former New York Congressmember Lee Zeldin. The Long Island Republican served four terms in the House, where he earned a score of just 14 out of 100 from the League of Conservation Voters, after consistently voting against critical environmental protections and clean energy job investments.

Zeldin’s nomination came after The New York Times reported Trump’s transition team is discussing moving the EPA headquarters outside D.C. Nate James of the American Federation of Government Employees told Politico many career EPA officials would leave the agency if it moves, adding, “it could be advertised as a relocation, but really it would be decapitation.”

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We go now to Judith Enck, who served as EPA regional administrator under President Obama, now president of Beyond Plastics. We’re speaking to her outside Albany.

Hi, Judith. Thanks so much for joining us again.

JUDITH ENCK: Thanks for having me.

AMY GOODMAN: Can you talk about, as both a former EPA administrator and a person from New York, where Lee Zeldin was a congressmember for years — talk about what a Zeldin heading the EPA looks like.

JUDITH ENCK: Well, Lee Zeldin at the helm of EPA will be a wonderful tenure for fossil fuel companies, plastics companies, chemical companies. But it’s going to be really bad for people who want to breathe clean air, drink water that doesn’t have toxic chemicals or lead in it. And I’m particularly concerned about what a Zeldin EPA would mean for environmental justice communities, places like Cancer Alley in Louisiana, places like Appalachia and Texas, where there’s a concentration of petrochemical facilities, and today there is not enough environmental protections in place.

I’m glad you mentioned Lee Zeldin’s tenure in Congress, where he had the not very impressive score of 14% voting record when he was in Congress. But let’s go back even further. Some people don’t know that Lee Zeldin was a state senator in Albany. And his record was so bad that a statewide environmental group gave him the distinguished 2011 Oil Slick Award. And he earned that Oil Slick Award because he introduced bills that would have, for instance, reduced funding for mass transit, provide dirty water in his Long Island district. And he just really stood out when he was in Albany, and then he took that environmental perspective to Washington, where his record was equally bad.

I do want to talk a little bit about his run for governor against Democrat Kathy Hochul, because some people are saying it kind of doesn’t matter what Zeldin’s policy positions are because he’s just going to do what Donald Trump tells him to do. But make no mistake: Lee Zeldin is in lockstep agreement with the Trump administration anti-environmental agenda.

When he was in Congress, he did a few good things that’ll be interesting to watch, very few. He opposed offshore drilling in the Atlantic Ocean. I don’t know what that means, though, for offshore wind development. He was a member of the Republican Climate Solutions Caucus, and they never did anything. And in breaking news, he supported protections for shellfish in Long Island Sound. Those are the only three positives that I could dig up on his environmental record. So, I have to agree with the guest from the ACLU who said this is going to be worse than anything we have ever seen at the EPA.

AMY GOODMAN: And talk about Project 2025, that Trump disavowed, but that as soon as he was elected, people were saying, “Of course this is what the plan is.” Talk about the plan including over 150 pages with, to say the least, damaging environmental plans.

JUDITH ENCK: Yeah, this is very concerning. Project 2025 is 900 pages, and 150 are dedicated to anti-environmental policies. Project 2025 calls for disbanding the EPA Office of Environmental Justice. It’s disbanding the office at EPA that deals with enforcement of critical environmental laws. They want to speed approval of chemicals. They want to weaken the Clean Air Act by removing the essential part of the statute which requires the EPA to set health-based standards when regulating air pollution.

The plan uses phrases like “the perceived threat of climate change.” They want to shut down climate research not only at the EPA, but at a dozen federal agencies. They want to see more fossil fuel development on public lands, not just private lands. So they’re advocating for drilling in Alaska’s Arctic National Wildlife Refuge and also drilling for fossil fuels in Minnesota’s Boundary Waters Wilderness areas.

And finally, all of us, unfortunately, have learned about the tremendous health damage caused by forever chemicals, known as PFAS chemicals, where EPA plays a major role. Something EPA, finally, recently did was classify PFAS chemicals as a hazardous substance. That was kind of a no-brainer. And this plan wants to reverse that.

AMY GOODMAN: Finally, I wanted to ask you about moving the EPA out of Washington. Is this just a geographic thing, or what would it mean, with so many people, obviously, not moving?

JUDITH ENCK: Well, I think it’s not efficiency. I think it’s an effort to drive out the long-term career employees that work at the EPA office. I want to point out there are 10 regional offices all over the country, but the role of the Washington office is to essentially establish the rules of the road when it comes to pollution, how much air toxics are we allowed to breathe in in Cancer Alley, what toxic chemicals will be in our drinking water. So, I really don’t think this is about government efficiency. I think this is about terrorizing the career staff at EPA, making their life harder, distracting them, and, most importantly, taking them away from their day jobs, which is strictly enforcing environmental laws.

AMY GOODMAN: Judith Enck, I want to thank you for being with us, former EPA regional administrator under President Obama, now serving as president of Beyond Plastics.

COP29 Leader Caught on Tape Pushing Oil and Gas Deals

“We need the UN to ban petro interests from sitting at the table,” says Lela Stanley, an investigator at Global Witness.

By Amy Goodman , DemocracyNow

November 13, 2024

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The U.N. climate summit known as COP29 is underway in Baku, Azerbaijan, where negotiators are trying to make progress on reducing emissions and preventing the worst impacts of the climate crisis. Many activists, however, have criticized the decision to hold the talks in an authoritarian petrostate. The host country is also facing accusations that it is using the climate talks for business, after the head of the talks, Elnur Soltanov, was caught in a secret recording promoting oil and gas deals. That sting was organized by the group Global Witness, which put forward a fake investor. “In exchange for just the promise of sponsorship money, that got us to the heart of the COP29,” says Lela Stanley, an investigator at Global Witness. “We need the U.N. to ban petro interests from sitting at the table, from influencing the COP.”

TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org. I’m Amy Goodman.

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We end today’s show talking about the U.N. climate summit in Baku, Azerbaijan. It’s entered its third day. On Tuesday, U.N. Secretary-General António Guterres issued a dire warning.


SECRETARY-GENERAL ANTÓNIO GUTERRES: The sound you hear is the ticking clock. We are in the final countdown to limit global temperature rise to 1.5 degrees Celsius. And time is not on our side.

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AMY GOODMAN: Many climate activists have criticized the decision to hold the talks in Azerbaijan, an authoritarian petrostate. Azerbaijan is also facing accusations it’s using the climate talks to make future fossil fuel deals.

Well, the group Global Witness has released a secret recording of Elnur Soltanov, the chief executive of the climate talks known as COP29. An undercover investigator with Global Witness posed as a fossil fuel investor and held an online meeting with Soltanov during which he discussed possible fossil fuel deals.


ELNUR SOLTANOV: As I said, we have a lot of pipeline infrastructure. We have a lot of gas fields that are to be developed. We have a lot of green projects that SOCAR is very interested in. There are a lot of joint ventures that could be established, potential joint ventures. Our SOCAR trading is trading oil and gas all over the world, including in Asia. So, to me, these are the possibilities to explore.

AMY GOODMAN: Those were the words of Elnur Soltanov, the chief executive of the U.N. climate talks in Azerbaijan.

We go now to Lela Stanley, interim head of fossil fuel investigations at Global Witness, joining us from Philadelphia.

Lela, thanks for being with us. So, talk about the significance of what he admitted to your group, albeit he thought he was talking to a fossil fuel investor and thought he could make a deal during the U.N. climate summit, that he’s heading.

LELA STANLEY: That’s right. Thanks so much for having me, Amy.

So, let me just set the scene for your listeners. As many folks probably remember, last year the climate conference was hosted by another petrostate, the United Arab Emirates. And we found that over the year that the UAE held the COP28 host position, its state-owned oil company sought out close to $100 billion in new oil and gas and petrochemical deals. And given that Azerbaijan, also a petrostate, most of its revenue coming from oil and gas, is hosting this year’s climate conference, we thought we wanted to see if something similar might be happening this year. So, as you say, we went undercover. We posed as a fake oil and gas investor, and we reached out to the COP29 team behind the climate conference.

And what we found was that in exchange for just a promise of sponsorship money, that got us to the heart of the COP29 team. We spoke with people who introduced us to a chief executive — excuse me, a senior executive at the state-owned oil company of Azerbaijan. That’s SOCAR. And we were introduced, as you say, to Elnur Soltanov, the CEO of COP29, also the deputy energy minister of Azerbaijan and on the board of SOCAR. And in speaking with our investigators, Soltanov said the COP is not about oil and gas, but then he pitched Azerbaijan as a growing gas producer. And he described an energy future in which fossil fuels would feature, in his words, perhaps forever.

AMY GOODMAN: Let’s go to that clip, that same call, Soltanov saying that oil and gas would be produced perhaps forever.


ELNUR SOLTANOV: So, definitely, in couple of years, I think the production levels will start declining, not now, not next year. And even with net zero, we will have a certain amount of oil and natural gas being produced, perhaps forever.

AMY GOODMAN: So, if you can talk, Lela, about what this means for the U.N. climate summit? You have countries pulling out, saying these are not worth it. And yet you have thousands of activists who come from the most hardest-hit parts of the planet, saying, “This is our last hope.”

LELA STANLEY: Yeah, a couple of things. So, first, I want people to remember that the U.N. climate conference, the COP process, it is the only game in town when it comes to rallying global efforts to avert climate breakdown. And that’s the point of these conferences. And so, that’s why it’s so shocking to me that the COP executive, Soltanov, would allow the conference itself to be essentially hijacked by oil and gas interests looking to use it as another business opportunity.

At the same time, we can’t lose sight of how essential this process is. I think the recent election results in the U.S. underscore how essential it’s going to be, more than ever, to have a functioning international process to stop climate breakdown. And we can’t afford to give up on COP. What we can do is force fossil lobbyists out of COP. We need the U.N. to ban petro interests from sitting at the table, from influencing the COP. Last year, our analysis showed that there were over 2,400 fossil fuel lobbyists at the climate conference, and that was more than almost any individual county’s delegation, save one, I believe.

AMY GOODMAN: So, if you — you just referenced what’s going on in this country, in the United States. Talk about Trump once again saying he’s going to pull the U.S. out of the Paris climate accord, and what that means.

LELA STANLEY: Yeah. You know, you can’t talk about the state of climate now and the state of climate diplomacy now without acknowledging America’s role as historically the biggest emitter, as Joe Biden’s role in overseeing a huge expansion of crude oil exports, and now Donald Trump’s commitment to removing us from the Paris Agreement and from international climate diplomacy. It’s a huge blow to the climate movement.

It is also one country. And I think that really underscores how essential having this functioning U.N. climate process is and how important it is for the host country of COP29, for Azerbaijan, to do its job and ensure that the talks this year are moving us forward toward that goal of averting climate breakdown.

AMY GOODMAN: Finally, what has been the response of the head of the COP, Soltanov, to your exposé?

LELA STANLEY: So, we made multiple efforts to reach Soltanov again, to try to reach the COP29 team, SOCAR, and they didn’t respond to any of our outreach or requests for comment after the fact

AMY GOODMAN: Lela Stanley, we want to thank you for being with us, interim head of fossil fuel investigations at Global Witness. Democracy Now! will be reporting live from COP29 in Baku, Azerbaijan, all next week, from November 18th to November 22nd. Tune in to democracynow.org.

Trump Isn’t Hiding Plan to Use Military to Quash Protests and Deport Immigrants

“The next time, I’m not waiting” before committing troops to suppress protests, Trump said at a rally in 2023.

By Marjorie Cohn , 

Truthout

PublishedNovember 12, 2024

The new president-elect and former President Donald Trump walks off stage after his campaign rally at PPG Paints Arena on November 4, 2024, in Pittsburgh, Pennsylvania.Chip Somodevilla / Getty Images

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Employing federal troops to suppress domestic protests and deport immigrants from U.S. soil en masse would be illegal, but Donald Trump has been pushing to do so since his first administration. The recent Supreme Court decision granting presidents nearly absolute immunity for official acts has created a situation with far fewer guardrails to prevent Trump from abusing his authority in his second presidential term.

Trump and his allies have reportedly drafted plans for him to deploy the military against civil demonstrators on his first day in office, according to a Washington Post report from November 2023. And Trump, who promised to carry out the largest deportation effort in U.S. history, has also indicated that he will use the military to deport millions of undocumented immigrants.

When Fox News asked Trump whether he thought “outside agitators” might have an effect on Election Day, Trump responded by saying, “I think the bigger problem is the enemy from within.” He added, “We have some very bad people. We have some sick people, radical left lunatics. And I think they’re the big — and it should be very easily handled by, if necessary, by National Guard, or if really necessary, by the military, because they can’t let that happen.”

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During his campaign, Trump also said that if re-elected, he would use the military at the southern border and to enforce the law in cities like Chicago and New York, which he dubbed “crime dens.”

Trump’s prior time in office shows that his willingness to raise such threats goes beyond campaign rhetoric. After massive demonstrations erupted around the country in protest against the May 25, 2020, murder of George Floyd by Minneapolis police, then-President Trump told his Secretary of Defense Mark T. Esper and Chairman of the Joint Chiefs of Staff Gen. Mark A. Milley that he wanted to invoke the Insurrection Act — which allows the president to deploy the military domestically and use it for civilian law enforcement — and order “ten thousand troops in Washington to get control of the streets.”


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On June 1, 2020, Trump said, “If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy United States military and quickly solve the problem for them.” Esper and Milley objected, saying the turmoil was best handled by civil law enforcement and the D.C. National Guard. Trump was furious. He called his top military leaders “losers” and repeated his wish to send active-duty troops into Minneapolis. “Can’t you just shoot them?” he asked Milley. “Just shoot them in the legs or something?”

Trump also proposed sending federal troops into Chicago, Seattle and Portland in response to Black Lives Matter protests and once again, Esper and Milley, joined by then-Attorney General William Barr, talked him out of it.

A former senior Defense Department official who served in the first Trump administration said that federal forces could be sent to U.S. cities to assist with Trump’s mass deportation plan once he is inaugurated.

During his second term, Trump will not likely be deterred from using the military against protesters and immigrants, even though employing federal troops to enforce domestic law in this manner would be illegal.


“Soldiers have not only a right, but a duty, to refuse illegal orders; yet the legality of those orders would be determined by courts-martial of refusers.”

The Posse Comitatus Act, enacted in 1878 to end the use of federal troops in overseeing elections in the post–Civil War South, bars the use of the military to enforce domestic laws, including immigration law. The Posse Comitatus Act, which forbids the willful use of “any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus [power of the county] or otherwise to execute the laws.” The only exceptions to the Posse Comitatus Act’s prohibition are “in cases and under circumstances expressly authorized by the Constitution or Act of Congress.”
“Serious Risk of Abuse” of the Insurrection Act

The Insurrection Act carves out an exception to the Posse Comitatus Act. The Insurrection Act can be used to authorize the president to deploy the U.S. armed forces, federalize the National Guard, or deputize private militias of nongovernmental forces within the United States.

There are three sections of the Insurrection Act that the president could invoke, only one of which requires the consent of state officials:First, where the legislature or governor of a state asks the president for assistance to quell an insurrection against the government (section 251);
Second, where the president decides that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States,” render it “impracticable” to enforce U.S. or state law in the courts (section 252); or
Third, when “any insurrection, domestic violence, unlawful combination, or conspiracy” deprives people of a legal right, privilege, immunity, or protection, that results in the denial of Equal Protection or “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws” (section 253).

Most of the instances in which the Insurrection Act has been invoked occurred under section 251. The Act was last used in 1992, when then-California Governor Pete Wilson asked President George H.W. Bush to deploy federal troops to put down the uprising against anti-Black racism and police brutality in Los Angeles that followed the state acquittal of the police officers who beat Rodney King.

Section 252 of the Insurrection Act can be triggered by the president’s subjective belief that it is “impracticable” for the courts and criminal legal system to function properly. Although courts would hesitate to overrule a president’s subjective decision, service members could decide that his order was illegal and refuse to obey it.

Section 253 of the Insurrection Act was enacted after the Civil War to ensure that Southern states enforced the federal rights of Black people. President John F. Kennedy used this section in 1962 and 1963 to send federal troops to Mississippi and Alabama to enforce the civil rights laws. In 1957, President Dwight D. Eisenhower deployed troops to desegregate schools in Little Rock, Arkansas, consistent with section 253. And in 1965, President Lyndon Johnson used section 253 to protect civil rights demonstrators from police violence during the civil rights march from Selma to Montgomery, Alabama.

The Insurrection Act does not authorize the president to deploy federal troops on U.S. soil to “restore public order,” Harold Hongju Koh and Michael Loughlin explained for the American Constitution Society in 2020.

As Laura Dickinson writes at Lawfare, executive branch lawyers — including members of Trump’s past administration — have previously made the case that the language of the Insurrection Act should be construed narrowly and used only as a “last resort” to avoid running afoul of the 14th Amendment; the Supremacy Clause (which says federal law trumps state law when there is a conflict); and Article IV, Section 4 of the Constitution, which requires the federal government to protect a state against “domestic violence.”

Section 253 is “particularly broad and vague,” Dickinson notes. It could encompass a small demonstration that interferes with law enforcement activities or judicial proceedings, “so long as there were a conspiracy to do so by two or more persons.”

“The Insurrection Act, if deployed without restraint, could ultimately transform a constitutional democracy into a police state patrolled by the U.S. military,” according to Dickinson.

“Trump’s threat to use U.S. military forces domestically against protesters, immigrants and other ‘enemies,’ places servicemembers in a legal and ethical dilemma,” Kathleen Gilberd, executive director of the National Lawyers Guild’s Military Law Task Force, told Truthout. “Soldiers have not only a right, but a duty, to refuse illegal orders; yet the legality of those orders would be determined by courts-martial of refusers. And servicemembers have a moral obligation not to harm the innocent; yet such harm would be inevitable if troops are used against civilians here.”

The Uniform Code of Military Justice requires that all military personnel obey lawful orders. A law that violates the Constitution or a federal statute is an unlawful order. Both the Army Field Manual and the Nuremberg Principles create a duty to disobey unlawful orders.
Proposed Reform of the Insurrection Act

In April 2024, at the invitation of the American Law Institute, a bipartisan group led by Bob Bauer, professor at NYU School of Law and former White House Counsel to President Barack Obama, and Jack Goldsmith, professor at Harvard Law School and former Assistant Attorney General in the George W. Bush administration, issued “Principles for Insurrection Act Reform.”

“There is agreement on both sides of the aisle that the Insurrection Act gives any president too much unchecked power,” Goldsmith said.

The bipartisan group proposed amending the Insurrection Act to say the president cannot deploy the armed forces unless “the violence [is] such that it overwhelms the capacity of federal, state, and local authorities to protect public safety and security.”

The main points of reform proposed by the bipartisan group this April would:Require the president to consult with the governor before deploying troops into any state;
Require the president to report to Congress within 24 hours of deployment about the need to invoke the Insurrection Act and about consultations held with state authorities;
Limit the president’s authority to deploy troops under the Act to a maximum of 30 days unless Congress renews authorization; and
Establish a fast-track process for Congress to vote on renewal of presidential authority under the Insurrection Act.

However, the Principles for Insurrection Act Reform document states that Insurrection Act reform “need not and should not include a provision for judicial review.” This appears to be a compromise reached to achieve bipartisan consensus.

On the other hand, S. 4699, titled the “Insurrection Act of 2024,” which was introduced by Sen. Richard Blumenthal in July, does contain a provision for judicial review. It provides that any individual or state or local government that is injured by, or has a credible fear of injury from, the deployment of the armed forces may bring a civil lawsuit for declaratory or injunctive relief in the U.S. district court. The Supreme Court would have jurisdiction to hear an appeal from the decision of the district court.

Given the current political climate, prospects for reform of the Insurrection Act are slim to none.
“The Next Time, I’m Not Waiting” Before Committing Troops

Citizens for Responsibility and Ethics in Washington, a nonprofit watchdog group, analyzed more than 13,000 of Trump’s Truth Social posts from January 1, 2023, to April 1, 2024, and discovered that he pledged at least 19 times to weaponize law enforcement, including several branches of the military, against civilians.


“It’s very likely that you will have the Trump administration trying to shut down mass protests and to specifically pick fights in jurisdictions with blue-state governors and blue-state mayors,” ACLU executive director Anthony Romero said.

An investigation by Military.com found that few checks would exist on a president who illegally orders the military to be used against U.S. citizens, particularly when he invokes the Insurrection Act.

The intent behind the Insurrection Act is to allow the president to use the military to help civilian law enforcement authorities “when they are overwhelmed by an insurrection, rebellion, or other civil unrest, or to enforce civil rights laws when state or local governments can’t or won’t enforce them,” Joseph Nunn wrote at Slate. “In such cases, a narrow exception to the general rule against using the military for law enforcement makes good sense,” he added. “The problem is that the Insurrection Act creates a giant loophole in the Posse Comitatus Act rather than a limited exception to it.” The “central failing” of the Insurrection Act “is that it grants virtually limitless discretion to the president.”

Trump expressed regret at not using the Insurrection Act in the aftermath of the summer 2020 Black Lives Matter protests. “The next time, I’m not waiting,” he declared at a rally in November 2023.

“It’s very likely that you will have the Trump administration trying to shut down mass protests — which I think are inevitable if they were to win — and to specifically pick fights in jurisdictions with blue-state governors and blue-state mayors,” ACLU executive director Anthony Romero said in August. “There’s talk that he would try to rely on the Insurrection Act as a way to shut down lawful protests that get a little messy. But isolated instances of violence or lawlessness are not enough to use federal troops.”

Lee Gelernt, an ACLU attorney, told The Washington Post that members of the organization “are particularly concerned about the use of the military to round up immigrants,” predicting that a second Trump term “will be much worse” than his first administration. “As always, we will go to court to challenge illegal policies, but it is equally essential that the public push back, as it did with family separation.”

Regardless of the illegality of Trump’s threatened abuse of the Insurrection Act, the Supreme Court has recently granted almost absolute immunity to presidents for official acts.

The ACLU is already drafting legal challenges to Trump’s invocation of the Insurrection Act against protesters.

This article is licensed under Creative Commons (CC BY-NC-ND 4.0), and you are free to share and republish under the terms of the license.

Marjorie Cohn  is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild. She sits on the national advisory boards of Veterans For Peace and Assange Defense, and is the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.

Handmaid's Tale author predicts power struggle between Trump and his billionaire buddies

Royalty-free stock photo ID: 1012690480 Austin, Texas / USA - Jan. 20, 2017: Women dressed in "Handmaids Tale" costumes attend a rally for reproductive rights on the steps of the Capitol. - Image

Here are some ways in which ‘The Handmaid’s Tale’ doesn’t seem far-fetched in 2019

Travis Gettysand  Raw Story

November 13, 2024

Margaret Atwood may have accurately predicted some aspects of the present day in her dystopian novel "The Handmaid's Tale," but she had tried not to believe Donald Trump could win last week's election.

The 1985 novel — now a hit HULU show – described a world in which women are considered property that some saying foretold the recent rollback of reproductive rights.

But the Canadian author told a gathering Tuesday in Calgary that she had hoped Republicans would not win the U.S. election, reported the Campbell River Mirror.

“I searched, I invoked, ‘Oh God, let it be sun,' but it was darkness all around,” Atwood told a forum hosted by the Alberta Teachers’ Association, Calgary Catholic Local 55 and Calgary Public Local 38.

Atwood now predicts that the president-elect will be locked in a power struggle with Elon Musk and other billionaire backers once he re-enters the White House.

“Watch what goes on inside the White House," she said. "We have several people with quite large egos backed by two billionaires who also have large egos and who don’t like each other. I think bookies are going to start making book on how long Donald Trump is going to last because is he really necessary for these billionaires anymore?

ALSO READ: Do not submit: Your guide to a way out of this catastrophic mess

Atwood said she based "The Handmaid's Tale," which depicts a society governed by religious fundamentalists who force some to bear children for wealthy, infertile couples, on discussions the religious right had been having for decades.

But she urged her audience not to surrender to fear that more of her predictions would come true.

“I don’t think we should be afraid at all, by which I don’t mean that there isn’t something horrible happening,” Atwood said. “I mean that fear makes you feeble.”

Betrayal of the American Dream: How Democrats lost FDR’s middle class

This image is available from the United States Library of Congress's Prints and Photographs divisionunder the digital ID cph.3c23278.T

Thom Hartmann

November 13, 2024

ALTERNET

The great lesson of the election of 2024 is that, to a large extent, class has replaced race as the single most potent political dividing line.

In 1933, Franklin D. Roosevelt took office and began a great experiment. Was it, he asked, really possible to create a society where more than half of a democratic and capitalist nation could enjoy a middle-class lifestyle? On the day of his inauguration the best estimate is that only about 15 percent of Americans had reached that economic milestone.

Back at the founding of our republic, several philosophers and economists suggested it was possible for a majority-middle-class society to emerge on this continent. Adam Smith (of the 1776 Wealth of Nations fame) wrote a book Theory of Moral Sentiments arguing that if a nation were to intervene in the marketplace in “moral” ways that uplifted working class people, such a society could emerge.

Thomas Paine similarly argued in Agrarian Justice for a number of progressive reforms including what today we call Social Security, a guaranteed minimum income, free public education, and the inheritance tax.

But from the beginning of America until 1933 most of these dreams were unrealized.

As Smith had intimated in Theory, unregulated capitalism would always produce the outcome Charles Dickens later wrote about in the 19th century: A top 1% that owns about 80% of the nation’s wealth, a middle 3%-5% professional class (doctors, lawyers, small business owners), and around 95% of the people representing a desperate working class living in abject poverty.

(In A Christmas Carol, Ebenezer Scrooge was the middle class; his company was so small it had only one single employee, Bob Cratchit, who represented the bottom 95%. The 1% don’t even show up in most of Dickens’ stories.)

FDR, though, with help from Francis Perkins, his wife Eleanor, and economist John Maynard Keynes thought he could tame capitalism and the capitalists themselves (he accusingly called them the “Economic Royalists”) and set out with his New Deal programs — legalizing unions, minimum wage, unemployment insurance, Social Security, government subsidies for the working poor, etc. — to create a vast American middle class.

This was the beginning of the modern Democratic Party, and the middle class was its great accomplishment; by the time Reagan took office about two-thirds of us were in that group with a single paycheck earning enough to buy a house, a car, take an annual vacation, put the kids through school, and retire with dignity.

Reagan broke with FDR’s policies that he’d once supported (in exchange for the promise of riches and a career from his second wife’s father), and took a meataxe to the New Deal. He busted unions, cut the top income tax bracket from 74% to 25%, and embraced free trade, allowing American manufacturing companies to go offshore in search of cheaper labor.

The result is that only 43% of us are in the middle class today. Adding insult to injury, it takes two full-time workers to get where a single paycheck could in 1980.

This was the beginning of the downfall of today’s Democratic Party, which has been buffeted by the twin winds of Reagan’s neoliberalism from the right and so-called “woke” identity politics on the left.

Trump and his Republican buddies cynically attacked Democrats for their embrace of Reagan’s policies, claiming that the shrinking of the middle class was because Black people and women were competing with white men for all those good jobs and Hispanics were diluting the labor market. At the same time, they argued, Democrats had gone too far in embracing marginalized minorities, particularly (in this election) the Trans community.

Ironically, Kamala Harris never once mentioned the Trans community while campaigning over the past three months, but Trump and the GOP relentlessly beat her over the head with a Willie Horton-like ad about giving free surgeries to Trans immigrants in prison. In this regard, the group using identity politics for political purposes was the Republican Party.

But the biggest lesson of this election is that class has supplanted race and other identity markers as the issue that motivated voters. Working class people in or aspiring to the middle class — including Hispanics, young white men, and to a smaller extent African American men — rejected economic policy (like Harris laid out) and racial, gender, or age cohort identity in exchange for the promise of good jobs and lower prices.

Sure, there was still a lot of identity politics at work: Trump’s anti-Trans ads are the best example, along with his relentless insistence that our nation’s immigrant population are mostly murderers, rapists, and thieves. And it may have been decisive on the margins.

But at its core, what we’re seeing in America is a realignment around class (its own form of identity politics). The middle class and its aspirants that had been supporters of the Democratic Party since the 1930s are now in the pocket of Republicans.


Part of this is the result of a massive, 40-year-long propaganda effort by billionaire-built media empires including talk radio (also in Spanish), three rightwing TV networks, Sinclair radio and TV, social media, and tending-right newspapers. Part is because in 2010 five corrupt Republicans on the Supreme Court legalized billionaires owning politicians and overwhelming elections with the “free speech” of their money.

But most substantially, as Bernie Sanders pointed out last week, it’s the result of the timeless class struggle between working people and what the GOP calls “the elites” (college-educated, upper-income professionals). The former broke big for Trump, the latter for Harris. And millions of minorities, particularly Hispanic men, rejected identity politics for the GOP’s class struggle pitch.

This dynamic is almost identical to the class struggle that brought FDR into power in 1933 and got him elected four times to the presidency, except that the party labels are now — hopefully temporarily — reversed.

The challenge for Democrats is to engage in their own class warfare, particularly since a good chunk of the Party (like the so-called “Problem Solvers Caucus”) are still on the take from big corporations and billionaires.


In this, the Congressional Progressive Caucus can be a great force to reclaim working people, rejecting both Reaganism’s hold on the Democratic Party (both Clinton and Obama embraced neoliberalism, and Biden’s rejection of it is largely unknown) and the notion that voters will always respond to race and gender rather than class.

If Democrats are to regain the working class as a solid and permanent constituency (which they owned from the 1930s to the 1990s), in other words, they must amplify Biden’s and Harris’ fights for higher taxes on billionaires and lower taxes on working people, universal healthcare and free college, reasonably priced housing, raising the federal minimum wage, protecting the right to organize, increase Social Security, and turn billionaires and greedy CEOs into an identifiable group voters can rightfully loathe. Attacking Republicans on the Supreme Court and their Citizens United decision is also vital.

As Kentucky’s Democratic Governor Andy Beshear wrote for The New York Times yesterday:
“I won re-election 12 months ago by five points in a state that Donald Trump just carried by 30 points. … The focus of the Democratic Party must return to creating better jobs, more affordable and accessible health care, safer roads and bridges, the best education for our children and communities where people aren’t just safer but also feel safer.“

This doesn’t mean Democrats have to abandon allies representing racial, religious, and gender minorities as some are suggesting; that would be both a betrayal and political suicide.

But it’s way past time for a significant recalibration, particularly at the grassroots/working class level. As Pete Davis writes in The Nation:
“Instead of funding itself primarily through membership dues, the [Democratic] party offers fancy events for the wealthy and ceaseless, disrespectful texts for the rest of us. Parasocial relationships with celebrities and famous politicians are emphasized over real relationships with fellow neighbors and local chapter leaders.

“When you go to Democrats.org, clicking ‘Take Action’ does not direct you to a page with your local Democratic committee’s meeting times and locations. The bolded call-to-action button on the party homepage is ‘DONATE,’ not ‘JOIN.’”

Thus, as Trump rolls out his cabinet and policies — which will primarily benefit the morbidly rich and giant predatory corporations — Democrats must pound on the class warfare aspect of what the GOP is really up to.

The Democratic Party has done it before and held power for half a century; they need to do it again. With gusto!

WHITE POWER

Surprised by US voters making dangerous, venomous choices? They’ve done it before.

How 'America became stupid' with Ronald Reagan and the 'corporate media’s help: journalist

President Ronald Reagan with Donald Trump in 1987 (Creative Commons)

Clay Wirestone, 

Kansas Reflecto

November 14, 2024

I am an old gay. This is an important part of the story that I am about to tell.

If you are an old gay like me, you well remember living in a world in which the vast majority of people disapprove of you. This was the United States up to about 20 years ago. It didn’t matter if you were promiscuous or flaming or even out — its simply mattered that you were gay and therefore a deviant who would go to hell.

I didn’t believe this. My friends and family didn’t believe this. Nonetheless, quite a few Americans believed it. An awful lot of Kansans believed it. To live in the world of 20 years ago as a gay man required the willingness to accept that most of the people you lived around and worked with didn’t just dislike you but disputed your basic personhood. Three years after I left the state to work in Florida, Kansans overwhelmingly voted to ban same-sex marriage in the state constitution.

People like to believe that this former world didn’t exist. But it very much did. I have not forgotten it. And I know that others my age have not forgotten it either.

I write this because of the 2024 general election results, which I know for many progressives and moderates and even a handful of conservatives has come as a dispiriting shock. Unfortunately, being right has nothing to do with majority support. Slavery had majority support in the South. Women had no separate legal identity from men for hundreds of years.

None of that was right. The people who supported such vile policies were wrong.

Likewise, the embrace by a majority of Americans of a would-be autocrat in the presidential election is simply wrong. They picked a man who encouraged an insurrection against the United States government. They picked someone who emboldens America’s enemies and alienates our allies. They picked someone who catastrophically mismanaged the COVID-19 crisis. They picked someone whose reelection bid was opposed by his own cabinet members.

On Jan. 20, 2025, Donald Trump will be sworn in as our 47th president. He was elected, and that’s that. Perhaps this time things will be different. But our nation will likely suffer because millions of Americans took the path they did.

Kansas will likely suffer because our state’s voters took the path they did. More will die from a lack of health insurance. More will face absurd criminal penalties for possessing and using cannabis.

I don’t believe that voting one way or another or belonging a certain political party makes people good or bad. But those who participate in the civic life of our country should take responsibility for their actions. That goes for politicians and voters alike.

New York Times opinion columnist Jamelle Bouie encapsulated my feelings perfectly, while explaining the perils of overanalysis.

“As long as journalists and pundits act as if they are amateur political strategists and not people trying to understand and tell the truth about the world, they are going to take the implicit view that voters can never be wrong, which then demands endless explanation of their morally blameless choice,” Bouie wrote in a thread on Bluesky. “Not me. It is not my job to say what a political party should or should not be doing. It is my job to tell the truth, and the truth is that a lot of people willingly abandoned their faculties to make a bad, destructive choice.

“This is not a popular opinion these days but people have agency. People are in control of the choices they make. No one is forced to do anything.”

Not everyone voted with these majorities. Some chose a different direction. They decided to live with empathy and caring and concern and made political decisions accordingly. They put the welfare of their fellow human beings ahead of the price of eggs or their own resentment of a changing world (spoiler alert: It’s going to change no matter which candidate you select).

As an old gay, though, I understand how this works. We do not come naturally to empathy for others. Humans look out for themselves primarily, and perhaps a handful around them. Prioritizing the nation or the needs of the disadvantaged? It’s a heavy lift. And it’s not just voters. Leaders from parties have seized the opportunity to demonize those who were different when needed.

President Ronald Reagan looked the other way while hundreds of thousands of gay men died of AIDS.

President Bill Clinton signed “don’t ask, don’t tell” into law and “reformed” welfare by ending the benefit as we know it.

President Barack Obama said he opposed sex-same marriage.

Reagan was wrong. Clinton was wrong. Obama was wrong. Kamala Harris was wrong when she rebuffed progressive dissent about widespread death and destruction in Gaza. Unfortunately, I have seen too much to expect genuine caring from politicians. I wish they would do better. I hope they would do better. I support a world in which stout-hearted activists pressure them to do better. But I don’t expect them to suddenly develop a conscience — voters alone hold that power.

So if you’re a straight, white person afraid of what another Trump term portends, welcome to the club. Some of us have been members for an awfully long time.

Clay Wirestone is Kansas Reflector opinion editor. Through its opinion section, Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.

Kansas Reflector is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and X.

Wisconsin Supreme Court justices question enforcing 1849 law as an abortion ban

Justice Jill Karofsky appeared immediately opposed to attorney Matthew Thome’s proposed interpretation Wisconsin’s 1849 law with regard to abortion. 

(Screenshot via Wiseye)

Baylor Spears

Wisconsin Examiner

November 12, 2024


Several of the Wisconsin Supreme Court liberal justices appeared opposed to the enforcement of a 174-year old law when it comes to abortion during oral arguments Monday in a high-profile case meant to clarify law in the state.

Wisconsin abortion law has been unsettled since the U.S. Supreme Court overturned Roe v. Wade in 2022, sending decisions about abortion legality back to states. Health care providers in Wisconsin immediately ceased providing abortion care due to the state’s 1849 law. Attorney General Josh Kaul and Democratic Gov. Tony Evers filed a lawsuit challenging the statute in June 2022, arguing that it had been superseded by other laws passed by the state, including a ban on abortions after 20 weeks enacted in 2015, and could not be enforced as applied to abortions.

Access ceased for 15 months until a Dane County judge ruled in December 2023 that the law applies to feticide, not abortion, allowing providers to resume services. Sheboygan District Attorney Joel Urmanski, a defendant in the case, appealed the decision to the Wisconsin Supreme Court, and Kaul also wanted a review of the decision from the Court. Milwaukee County DA John T. Chisholm and Dane County DA Ismael Ozanne are also defendants in the case, but both oppose enforcing the law.

The pre-Civil War Wisconsin statute states that any person “other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony” and that any person who “intentionally destroys the life of an unborn quick child” is guilty of a Class E felony. It specifies that “unborn child” is defined as “a human being from the time of conception until it is born alive. It includes no exceptions for rape or incest or specific medical complications. The only exception for the law is the life of a mother.

Urmanski’s attorney, Matthew Thome, defended the enforcement of the statute Monday morning, saying lawmakers never repealed it. Republican lawmakers have proposed updates to the 1849 law in the last two years, including a 14-week abortion ban, but the proposals have failed to become law.

“Policymakers have not repealed it. Indeed, they have expressly declined to do so at multiple opportunities and until they do, it can be enforced,” Thome said.

He argued that the question over whether Wisconsinites would be “better served” by a different law is not for the Court to decide.

Justice Jill Karofsky appeared immediately opposed to Thome’s proposed interpretation of the law.

“Just to be clear, a 12-year-old girl, who was sexually assaulted by her father, and as a result became pregnant under your interpretation [of the law], she would be forced to carry her pregnancy to term, correct?” Karofsky asked.

“Under the policy choice the Legislature made…, that would be correct,” Thome said.

“So in that case, a child would be forced to deliver a baby,” Karofsky said.

Karofsky pushed the point, asking about the consequences of a victim of sexual assault seeking an abortion under the law if it were enforceable.

“How about a woman who is a college freshman here at the University of Wisconsin-Madison? If she is sexually assaulted and it’s charged as a third degree sexual assault… that would be intercourse without consent. If she became pregnant, as a result of the sexual assault, it would be illegal for her to obtain an abortion?” Karofsky said.

“Correct, it would be illegal for a doctor to provide an abortion to her in the state of Wisconsin,” Thome said.

“If her assaulter is charged…, he would be facing a 10-year maximum imprisonment because that would be a Class G felony,” Karofsky said. “In that case, the penalty for aborting, after a sexual assault, would be more severe than the penalty for the sexual assault.”

A study published in the Journal of the American Medical Association estimates that since the Dobbs decision more than 64,000 pregnancies have been cause by rape in states with abortion bans.

“I fear what you are asking this Court to do is to sign the death warrants of women and children and pregnant people in this state because under your interpretation they could all be denied life-saving medical care while the medical professionals who are charged with taking care of them are forced to sit idly by,” Karofsky said. “This is the world gone mad.”

Justices also asked about the web of laws passed in the state, and appeared to disagree with Thome’s argument that the 1849 law completely negates them.

“We have statute after statute that you are somehow asking us to just absolutely ignore in your interpretation,” Justice Rebecca Dallet said. “We have a statute that talks about when an abortion can be performed and that’s after 20 weeks. We have a 24-hour waiting period. We have informed consent provisions. We have a ban on what they label to be partial birth abortion.”


Dallet asked Thome how he reconciles the 1849 statute with the later statute passed in 2015 that prohibits abortion after 20 weeks and the other laws related to abortion.

“I fit those things together… because that statute doesn’t say you can have an abortion,” Thome said.

Justice Brian Hagedorn appeared to agree that the 1849 law applies to abortion, and said later laws don’t negate it.

“It’s a matter of straight reasonable statutory interpretation,” Hagedorn said. “The law’s still there. It’s still there. The judiciary doesn’t get to edit laws. The judiciary doesn’t get to rewrite them. We didn’t delete it. We prevented its enforcement now, it’s still there.”


Wisconsin Assistant Attorney General Hannah Jurss, who represented Kaul, argued that there was an “implied repeal” of the 1849 law, when lawmakers passed other statutes regulating abortion access in the state.

“The standard implied repeal rule is it’s the earlier law that falls and there’s nothing in the text of the Wisconsin statutes… that would say disregard all of that, and instead in the event of Roe being overturned go back to 940.04, and we know state Legislatures knew how to do this because… a number of states enacted trigger bans,” Jurss said. “Wisconsin did not.”

Kaul said at a press conference following the arguments that the Legislature should take up some of the other laws related to abortion access in the state, no matter the outcome of the lawsuit.

“There are now relatively narrow majorities for Republicans in the state Legislature,” Kaul said. The Assembly is now a 54-45 Republican majority, while the Senate is an 18-15 Republican majority. “It is very clear that Wisconsinites overwhelmingly support having safe access to abortion in the state. For those legislators in these districts that are very moderate, where those districts could go either way, I think we ought to ask those folks, do they support some common sense changes that will protect access to abortion care in Wisconsin.”

The Wisconsin Supreme Court has also agreed to hear a second lawsuit brought by Planned Parenthood of Wisconsin against Urmanski, which asks the Court to find that the state Constitution’s right to equal protection grants a right to receive an abortion and a doctor’s right to provide one.


Wisconsin Examiner is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Wisconsin Examiner maintains editorial independence. Contact Editor Ruth Conniff for questions: info@wisconsinexaminer.com. Follow Wisconsin Examiner on Facebook and X.

In a blow to TikTok, judge allows Utah’s lawsuit against the social media company to move forward

In court documents, Utah called TikTok “digital nicotine” for young people.

Image via Shutterstock.
'West Elm Caleb' and the rise of TikTok tabloids

Kyle Dunphey, Utah News Dispatch

November 13, 2024

Utah’s lawsuit against TikTok will move forward after a judge on Tuesday denied the social media company’s motion to dismiss.

In October 2023, Utah sued TikTok over alleged “addictive features” designed to keep children and teens on the app for as long as possible, promoting “endless scrolling” while downplaying the platform’s harm to young people.

In court documents, Utah called TikTok “digital nicotine” for young people.

The following December, TikTok filed a motion to dismiss the lawsuit that, among other things, argued that Section 230 of the federal Communications Decency Act shields the company from liability. Section 230 essentially sought to hold the speaker responsible for any harmful online speech, not the host or website, and TikTok claimed the lawsuit targeted it for publishing third-party content.

The company also said Utah’s Consumer Protection Act, which TikTok was accused of violating, was “vague” and ran afoul of the First Amendment.

But on Tuesday, Utah’s 3rd District Judge Richard Daynes denied TikTok’s motion, writing that it is “in the state of Utah’s interest in resolving this dispute.”

“The Complaint itself arises from claims of injury towards Utah residents in enforcing Utah’s Consumer Sales Practices Act. The alleged victims of the defendant’s conduct apparently includes hundreds of thousands of Utah citizens. Those citizens are alleged to use the TikTok application within the state of Utah,” Daynes writes.

Utah gets legal backup in TikTok lawsuit, as 13 states now allege harm to teen mental health

Daynes also found that Utah’s Consumer Protection Act “is not in violation of the Due Process Clause and the First Amendment.”

A TikTok spokesperson did not immediately respond to a request for comment on Tuesday.

But Utah leaders celebrated the ruling, with Attorney General Sean Reyes saying he was “thrilled.”

“Today’s decision is a crucial step forward in our battle against the harmful practices of TikTok. We refuse to let a social media giant evade responsibility for its role in fostering addiction and exposing our children to multifarious threats. This case is all about safeguarding our kids and holding TikTok accountable for its actions,” Reyes said in a statement.

And Margaret Busse, the Utah Department of Commerce’s executive director, said the state will continue to fight what she called “deceptive practices” from social media companies.

“We are steadfast in our mission to protect our children from predatory and exploitative behavior,” Busse said in a statement.

The court heard arguments on TikTok’s motion to dismiss in September. No additional hearings have been scheduled as of Tuesday.


Utah News Dispatch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Utah News Dispatch maintains editorial independence. Contact Editor McKenzie Romero for questions: info@utahnewsdispatch.com. Follow Utah News Dispatch on Facebook and X.